RE MAGOOLA NADIA AMIRA

CAMP 204/2021

[2021] HKCA 1743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 204 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 355 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 a renewed application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”)  dated 30 June 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1404). An earlier application for extension of time to appeal was refused by the Judge on 3 May 2021 (“the EOT Decision”)  ([2021] HKCFI 1239).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 9 February 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 6 March 2017 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this complaint without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a Ugandan national.  She entered Hong Kong illegally on 23 March 2013 and thereafter overstayed.  She surrendered to the Immigration Department on 26 November 2013 and raised her non-refoulement claim by way of written representations on 11 April 2014 and 2 July 2014 and submitted her non-refoulement claim form on 20 January 2017.  The basis of her non-refoulement claim was that if refouled, she would be harmed or killed by her step-brother because of a land dispute.  Details of the applicant’s claim have been summarised by the Judge at [4] of the Leave Decision.

5.  By a Notice of Decision dated 6 March 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].  Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from her step-brother as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

6.  On 14 March 2017, the applicant lodged an appeal to the Board against the Director’s Decision.  She attended an oral hearing before the Board on 15 September 2017 and gave evidence.  The Board dismissed her appeal on 9 February 2018 and confirmed the Director’s Decision.  The Board found that the applicant was not a witness of truth given the contradictory and marked difference between her oral evidence and her initial statement which she failed to explain.  Having assessed the evidence, the Board considered that her alleged risk of harm if refouled was far-fetched and did not amount to a real risk.

The Leave Decision

7.  On 6 March 2018, the applicant filed a Form 86 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.  In the Form 86 and the supporting affirmation, the applicant only stated that her step-brother wanted to kill her because of the land dispute.  She did not request for an oral hearing and her application was considered on the paper.

8.  By the Leave Decision of 30 June 2020, the Judge refused to grant leave to apply for judicial review to the applicant for the following reasons:

“Grounds of review

10. There were no grounds of review. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no underlying basis for this claim today, even if there had been a basis previously. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 15 September 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  A hearing was held on 3 May 2021 but the applicant failed to attend.  Her application was considered by the Judge on the paper.

11.  By the EOT Decision, the Judge refused to grant the applicant extension of time to appeal as the applicant provided no satisfactory explanation for her delay other than that she did not receive the letter from the Court.  The Judge noted that the Court file showed that it was properly sent to the address given by the applicant at the material time, which was not the same as the one she subsequently used in her application for extension of time to appeal and the correspondence was returned.  The Judge noted that it was the duty of a litigant to give the court an address to which correspondence or notice could come to her attention in a timely manner and the consequence of any delay arising from failing to do so would fall upon the litigant.  Given the length of delay and her lack of explanation as well as there being no underlying merits of her application, the Judge dismissed the EOT Summons on 3 May 2021.

The Present Application

12.  By a summons dated 2 June 2021, the applicant applied to this Court for extension of time to appeal against the Leave Decision.  In the supporting affirmation dated 2 June 2021, she only stated that she was late to appeal because the decision from the Court came late.  No viable ground of appeal was given in the summons or the supporting affirmation.  The applicant also failed to comply with the directions given by the Registrar of Civil Appeals on 29 June 2021 to lodge any written submissions.

Discussion

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court would have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted: Re Farrukh Zaib [2020] HKCA 408 at [22].

14.  We consider that the applicant’s delay was not insubstantial and the applicant had not provided any cogent explanation for the delay.  As repeatedly emphasised by this Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address will fall on the shoulder of the litigant: Re Hasmi Rizwan Imran [2018] HKCA 439 at [15]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9].

15.  As the applicant did not have any cogent explanation for her delay in bringing the intended appeal, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

16.  In assessing the merit of an intended appeal, this Court would focus on the decision of the Judge and would only consider reversing that decision if an applicant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  Nowhere in the summons and the supporting affirmation both dated 2 June 2021 did the applicant identify any proper grounds of appeal or any errors committed by the Judge.

18.  As the applicant failed to identify any proper grounds of appeal, there is no merit and no prospect of success in her intended appeal against the Leave Decision.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 2 June 2021 dismissed.