RE BERMUDEZ EDNA LABADCHAN

CACV 351/2020

[2021] HKCA 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2020

(ON APPEAL FROM HCAL 2889 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 30 July 2020 (“the Deputy Judge’s Decision”) [2020] HKCFI 1743, refusing to grant her leave to apply for judicial review.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

A.      Background

3.  The applicant is a national of Philippine.  She first came to Hong Kong as a domestic helper.  Her employment contract however was terminated prematurely on 9 August 2018.  She did not depart and was arrested on 18 October 2018 for overstaying.  On 20 October 2018, the applicant was convicted of the offence of breach of condition of stay by overstaying.  On 8 November 2018, a removal order was served on her.

4.  On 17 December 2018, by way of a Form 86 (dated 6 December 2018), the applicant acting in person sought leave to apply for judicial review.  In the front page of the Form 86 under the box “Judgment, order, decision or other proceeding in respect of which relief is sought”, it was stated that the decision in respect of which relief is sought is the decision of the Director of Immigration (“the Director”) dated 16 November 2018, “dismissing the application by ruling that the Applicant fails to establish a case for non-refoulement whether under the principles of Torture or BOR3 risk^[1] or Persecution^[2]” (the “2018 November Decision”).

5.  The applicant also requested an oral hearing of her leave application under Order 53, rule 3(3) of the Rules of the High Court if leave is not to be granted on paper.

6.  In the Form 86, under “the 1^st Ground” of intended judicial review, it was stated that the Director erred by “refusing to accept the Applicant’s non-refoulement claim for screening before a decision can be reached whether non-refoulement claim is established or not” (emphasis added).

7.  It is pertinent to note that the applicant did not exhibit a copy of the 2018 November Decision to the supporting affirmation dated 6 December 2018.

8.  Apparently, in light of the absence of a copy of the 2018 November Decision, by a letter dated 14 February 2019, the clerk (“the Clerk”) to the Deputy Judge wrote to the Removal Assessment Section of the Immigration Department asking for copies of any of the relevant decisions made by the Director and the Torture Claims Appeal Board (“TCAB”) relating to the applicant’s non-refoulement claim.

9.  By a letter dated 20 February 2019, the Immigration Department provided the following information to the Deputy Judge:

(1)  The applicant’s non-refoulement claim was considered as made on 18 December 2018, and that the Notice to Persons Making a Non-refoulement Claim and a Non-Refoulement Claim Form (“NCF”) were served on the applicant on 19 December 2018.

(2)  The applicant submitted the NCF (completed through Duty Lawyer Service) on 24 January 2019 and a screening interview was conducted with her on 11 February 2019.

(3)  By way of a decision dated 18 February 2019 (“the Director’s Feb 2019 Decision”), the Director rejected the applicant’s non‑refoulement claim on the BOR3 risk, the persecution risk, the torture risk and the BOR2 risk^[3].

10.  Upon the Clerk’s further request, the Immigration Department by a letter dated 20 March 2019 provided a copy of the Director’s Feb 2019 Decision to the court.

11.  It is thus plain from the above that the 2018 November Decision sought to be challenged by the applicant under the Form 86 cannot be the Director’s decision to refuse her non-refoulement, which was only made on 18 February 2019, some three months later.  Indeed, as it can also be seen from the above, at the time when the applicant filed the Form 86 on 17 December 2018, she was not considered by the Director as having formally made her non-refoulement claim.  In short, there was no 2018 November Decision and the Form 86 of 17 December 2018 is defective.

12.  Notwithstanding this, until early May 2019, the Clerk continued to write to the Immigration Department and the TCAB asking for copies of any decisions relating to the applicant’s non-refoulement claim, including any TCAB decision.

13.  By a letter dated 9 May 2019, the TCAB informed the Clerk that it had not received any appeal or petition from the applicant, and undertook to inform the court immediately if such a decision was made.

14.  In light of all the above, by a letter dated 9 May 2019, the Clerk wrote to the applicant pointing out to her in summary the above history of her non-refoulement claim and the fact she had referred in the Form 86 to a decision made in November 2018, and asking her to confirm what decision her leave application for judicial review referred to.

15.  By a letter received by the court on 17 October 2019 (thus some five months later), the applicant provided to the Clerk a copy of the Director’s 2019 Feb Decision.

16.  It appears that the Deputy Judge then treated the applicant’s leave application as one intended to challenge the Director’s 2019 Feb Decision.  Hence, by a letter dated 28 October 2019, the Clerk wrote to the applicant informing her that “her application for judicial review of the [Director’s 2019 Feb Decision] should be dealt with by the TCAB”, and that her then leave for judicial review application would be dealt with by a written decision by court (thus on paper).

17.  On 1 November 2019, the applicant wrote to the court asking for a stay of her leave application until the outcome of her appeal to the Board.

18.  The Deputy Judge did not accede to her request for stay and proceeded to consider her leave application on paper despite the applicant’s request for an oral hearing as stated in her Form 86.

B.      The Deputy Judge’s Decision

19.  As mentioned above, the Deputy Judge treated her leave application as one seeking to judicially review the Director’s 2019 Feb Decision.  As such, he dismissed the application on the basis that there existed an alternative remedy of a statutory appeal against that decision to the TCAB, and there were no exceptional circumstances in the case to justify the court to exercise its discretion to entertain a judicial review challenge of that decision despite the alternative remedy.  See [9] ‑ [13] of the Deputy Judge’s Decision.

C.      This appeal

20.  By way of a Notice of Appeal dated 11 August 2020, the applicant appealed against the Deputy Judge’s Decision.  Her ground of appeal is that:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.” [sic]

21.  The applicant did not file any supporting affirmation nor did she lodge her written submissions as directed by the Registrar of Civil Appeals.

D.      Discussion

22.  The appeal is clearly without merits for the following reasons.

23.  The applicant’s only stated ground of appeal relates to the TCAB decision presumably rejecting the applicant’s subsequent appeal lodged against the Director’s 2019 Feb Decision.  That has nothing to do with the Deputy Judge’s Decision.  This is therefore not a viable ground of appeal and this appeal should be dismissed on that basis alone.

24.  However, in light of the history of the leave application and the applicant’s non-refoulement claim as we have summarized above, we will at the same time point out that the Deputy Judge is also clearly incorrect in treating the applicant’s application for leave to apply for judicial review as one challenging the Director’s 2019 Feb Decision and dismissed it on that basis.  This is so as the leave application dated 6 December 2018 and filed on 17 December 2018 could not have been intended to challenge the Director’s 2019 February Decision.  Hence, by way of that application, the court was not seized with the jurisdiction to deal with the Director’s 2019 Feb Decision.

25.  When the matters are read in the round and together, it appears that the 2018 November Decision sought to be challenged by the applicant relates to an alleged decision said to be made by the Director refusing to allow the applicant to even submit a non-refoulement claim for screening (see the quote from the Form 86 at [4] and [6] above), and hence it relates to a decision dated before the formal making of the non-refoulement claim on 18 December 2018.

26.  The confusion was no doubt contributed to by the unclear and equivocal way the Form 86 was prepared and drafted by the applicant, the fact that she herself also provided a copy of the Director’s 2019 Feb Decision to the court in October 2019 and the lack of an oral hearing which could have clarified the confusion.

27.  However, despite the Deputy Judge’s error in dealing with the leave application on the basis that it intended to challenge the Director’s 2019 Feb Decision, this appeal is still without any merits and should be dismissed.  The intended challenge against the non‑existent 2018 November Decision is clearly misconceived.  For the same reasons, the Deputy Judge’s failure to give the applicant a hearing despite her request made under Order 53, rule 3(1) did not cause any real prejudice to the applicant and does not by itself amount to a valid ground of appeal.

E.      Disposition

28.  For all these reasons, the applicant’s appeal has no merits and we dismiss it accordingly.