SHERPA MINGMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 157/2019

[2019] HKCA 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 863 OF 2017

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 12 April 2019, Campbell-Moffat J refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1].

2.  On 5 June 2019, the judge refused to grant leave to the applicant to appeal against her said decision out of time as she considered the applicant’s reason for the delay is not acceptable and there is no merit in the intended appeal[2].

3.  The applicant filed a renewed application with the Court of Appeal for leave to appeal against the judge’s decision out of time on 9 July 2019 with an affirmation in support.

4.  On 30 July 2019, the Registrar of Civil Appeals directed that unless the applicant was to lodge and serve a written submission by 4 pm on 15 August 2019, she shall be barred from lodging any written submission and the application for extension of time to appeal shall be determined on the basis of the summons and affirmation filed in support[3]. As the applicant did not lodge any written submission within time, she is precluded from doing so by the unless order. 

5.  We exercise the power of the Court of Appeal under Order 59 rule 2A(5) of the Rules of the High Court to determine this application on paper without an oral hearing.

6.  The applicant is a 33-year-old national of Nepal who entered Hong Kong as a visitor on 23 November 2013.  She overstayed and was later arrested by the police on 23 June 2014.  She submitted a non-refoulement claim by way of written representation on 25 June 2014 and her non-refoulement claim form on 13 June 2016.  Her claim was made on the basis that if she were to return to Nepal, she would be seriously harmed by her uncle and one Mr Maila to whom she was promised in marriage by her uncle but she was unwilling to marry Mr Maila.

The Director’s decisions

7.  By a Notice of Decision dated 3 June 2016, the Director rejected the applicant’s non-refoulement claim on torture risk[4], BOR 3 risk[5] and persecution risk[6]. 

8.  By a Notice of Further Decision dated 28 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[7].

The Board’s decision

9.  The applicant attended the hearing of the appeal against the Director’s decisions before the Board on 31 August 2017.  The Board considered that there are no substantial grounds to believe that the applicant will face a real risk of harm if she returns to Nepal.  Her uncle and Mr Maila were not acting in any official capacity.  She had been able to live and work in Kathmandu without incident for six or seven years before she departed Nepal for Hong Kong.  The Board was of the view that state protection and internal relocation alternatives are available in Nepal and decided that the applicant failed to establish her claim and dismissed the appeal on 27 October 2017.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 9 November 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

11.  The applicant did not request an oral hearing in her notice of application.  Therefore, the judge considered the application on paper. 

12.  As the Director’s decisions are not susceptible to judicial review once an appeal to the Board has been pursued and dealt with[8], the judge focused on the applicant’s complaints regarding the Board’s decision.  The judge found no evidence which would support the applicant’s suggestion that the adjudicator of the Board was biased or prejudiced.  The judge also held that there was no error of law or procedure.  There was also no evidence of procedural unfairness or failure to adhere to a high standard of fairness throughout.  On the contrary, the Board gave the applicant reasonable opportunity to state her case and had enquired into the case appropriately[9]. The application for leave to seek judicial review was refused on 12 April 2019.

Grounds of appeal

13.  In the applicant’s affirmation filed on 9 July 2019 in support of the present application, she stated that the lack of oral hearing before the judge is an error in law.  She asserted that as she does not speak or write English, all the documents were done through the help of her friends and the correct meaning may get lost in translation.  An oral hearing with an interpreter should be arranged to confirm that all the contents of the documents are true.

Analysis

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 12 April 2019.  The applicant took out a summons in the court below on 9 May 2019.  She was late by 13 days.  This was not a substantial delay.

16.  In the summons and affirmation filed on 9 May 2019 in the proceedings below, she explained that on 30 April 2019 she came to the High Court to obtain a copy of the order made on 12 April after the immigration officer informed her about it.  She stated that she did not receive any documents from the court after the judge had made the order dismissing her leave application, despite having given notice of change of address to the court[10].

17.  In fact, the applicant only filed the notice of change of address for service on 9 May 2019, ie on the same day when she filed with the court below a summons for extension of time to appeal.  In her affirmation filed on 9 July 2019, she explained that she was not aware that the court of Hong Kong is different from the Immigration Department and she genuinely thought that by updating the Immigration Department, the court would also be updated. 

18.  As pointed out by the judge, it is the duty of a litigant to give the court an address such that correspondence or notice of the court sent to that address can come to the litigant’s attention in a timely manner and the consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant[11].  Besides, there was a lapse of 9 days before she took out the time extension summons after she obtained the order from the court.  Such further delay remains unexplained.

19.  In any event, even if the court accepts the applicant’s explanation given the short delay of the present case, the court would still assess whether she can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[12].

20.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

21.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  The Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.  The applicant complained about the lack of oral hearing when the judge refused her leave application. 

23.  Order 53 rule 3(3) of the Rules of the High Court (Cap 4A) provides that the judge may determine the application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application, i.e. the Form 86.  The applicant’s leave application was considered on paper as she did not request an oral hearing.  The judge had acted in accordance with the Rules of the High Court to consider the leave application on paper.

24.  More importantly, in the original leave application, the applicant had already submitted detailed grounds in writing[13]. The judge had considered the papers and the grounds carefully[14].  In the present application, the applicant failed to give particulars as to how her application was actually prejudiced for the lack of oral hearing.  She also failed to show that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

25.  As the applicant failed to show that she has reasonable prospect of success in the intended appeal, we dismiss the summons filed on 9 July 2019.