CUCUN FATIMAH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 151/2019

[2019] HKCA 1264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 151 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 411 OF 2018)

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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 8 March 2019, Deputy High Court Judge Bruno Chan 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 his said decision out of time as he 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 3 July 2019, with an affirmation in support.

4.  The applicant is a national of Indonesia who last arrived in Hong Kong on 15 September 2009 with permission to work as a foreign domestic helper. After her employment contract was prematurely terminated on 20 March 2010, she did not depart.  She overstayed and was arrested by the police on 15 December 2010.  She had previously raised a torture claim which was rejected on 24 October 2012.  She then lodged a non-refoulement claim and completed the supplementary claim form on 22 December 2014.  Her claim was made on the basis that if she were to return to Indonesia, she would be harmed or killed by her mother’s creditor because she failed to repay the loan for her mother and refused to marry him. 

The Director’s decisions

5.  By a Notice of Decision dated 6 February 2015, the Director rejected the applicant’s non-refoulement claim on BOR 3 risk[3] and persecution risk[4].

6.  By a Notice of Further Decision dated 16 November 2016, the Director rejected the applicant’s non-refoulement claim on BOR 2 risk[5].

The Board’s decision

7.  The applicant appealed against the Director’s decision on BOR 2 risk to the Board on 28 November 2016.  The Board took the view that what the applicant stated did not engage BOR 2 subsections (ii) to (vi) and dismissed the appeal on 7 March 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 13 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

9.  The leave application was heard before Deputy High Court Judge Bruno Chan on 15 January 2019.  The judge held that there was no error of law or procedural unfairness in the decisions of the Director and the Board, and the Director and the Board had applied high standards of fairness in their consideration and assessment of the claim.  The judge considered that the applicant’s intended application for judicial review does not have any prospect of success and refused her leave application on 8 March 2019. 

The grounds of appeal

10.  In the written submission for the present application, the applicant submitted as follows[6]:

(1)  It is unfair that the High Court judges never heard the applicant in person.

(2)  There was lack of legal representation.  There is no evidence showing otherwise that she should not be entitled to representation as the high standard of fairness laid down by previous court decision was directed towards legal representation for the assessment before the Director.

(3)  The lack of language assistance and legal representation meant that the applicant had no understanding of the process or the reasons for rejecting her claim.  The lack of language assistance still exists to this day.

(4)  All the acts of the authorities have been highly discriminatory and unfair to her.

(5)  The applicant will need to request for a hearing.  There is also no evidence that the courts have acted diligently in ensuring that litigants know what is going on with their own case, ie the need of lodging written submission in a manner that is understandable by someone alien to Hong Kong like the applicant.

(6)  The discriminatory act of authorities towards non-refoulement claimants of quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.  She has not been treated as an equal and her handicap has not been taken into account.  For this sole reason leave should be granted because such discrimination is a question of great general or public importance.

Analysis

11.  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.

12.  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 8 March 2019.  The applicant took out a summons in the court below on 16 April 2019.  She was late by 25 days, which is considered substantial.

13.  In the written submissions lodged on 31 July 2019, the applicant explained that she gave birth to her baby with operation and she is a single mother who does not have any family members here.  Her financial condition is living from hand to mouth.  She is not well aware of court proceedings and the time limit so she could not pay attention to her case to follow up. 

14.  In fact, the applicant stated in the affirmation filed with the court below on 16 April 2019 that she gave birth to her child six months ago[7].  In the present application, she failed to produce evidence by way of affirmation to support that there are any special circumstances which made her unable to lodge an appeal by the prescribed time. 

15.  Where the delay was inexcusable, the party seeking an extension of time must show a real prospect of success on merits: Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125. 

16.  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.

17.  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.

18.  The applicant contended that the High Court judge never heard her in person.  In fact, hearings were conducted before the judge on 15 January 2019 and 9 May 2019 respectively for her original leave application and the application for extension of time to appeal.  This contention is totally without basis.  

19.  The ground relating to the lack of legal representation is also without merit.  The applicant already had the benefit of legal representation in presenting her case to the Director.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[8]. 

20.  As for her complaint in relation to the lack of language assistance, the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658. 

21.  Besides, the documents submitted by the applicant including the written submissions, summonses and affirmations were written in English.  This indicates that either the applicant is conversant with English or she has access to language assistance of her own if needed.  Therefore, the ground relating to the lack of language assistance is also unmeritorious.

22.  The applicant contended that the authorities have been discriminatory and unfair to her.  In particular, she complained about the quick disposal of non-refoulement cases and the unequal treatment towards her.  This ground is untenable for the lack of particulars and evidence in support. 

23.  The applicant also asserted there is no evidence that the courts have acted diligently in ensuring that litigants know what is going on with their own case, ie the need of lodging written submission in a manner that is understandable by someone alien to Hong Kong like her.  This assertion is misconceived.  The burden of showing that the judge was wrong lies on the applicant.  Moreover, her contention is self-contradictory as she did actually lodge her written submission as directed by the court for the present application.

24.  In any event, the applicant failed to show 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.  As she does not have any prospect of success in the intended appeal, we dismiss the summons filed on 3 July 2019.