SHEETAL NEUPANE v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 30/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 30 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 136 of 2017)

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JUDGMENT

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

1.  This is an application for extension of time to appeal against the decision of M Poon J on 1 September 2017 refusing leave to the applicant to apply for judicial review. The applicant arrived in Hong Kong on 12 April 2014 and since 20 April 2014 overstayed beyond the permission to remain here granted by the Director of Immigration. She was arrested on 10 September 2014. On 12 September 2014 she lodged a non-refoulement claim. The Director decided against her claim on 10 June 2016. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board of 9 March 2017. The Board rejected the non-refoulement claims of the applicant based on the Hong Kong Bill of Rights as well as the Refugee Convention.

2.  The judge gave the following reasons in refusing leave at [6] to [9] of the Form CALL-1:

“ 6. The basis of claim is one of prolonged domestic violence. Yet the applicant never reported the assaults to the police, and tolerated those abuse for a period of 6 years before running away.

7. After the oral hearing before the Adjudicator, she sent in a letter raising an additional ground that she had since learned that her husband had joined politics and had become more powerful. Whilst the applicant complained that she was not given any opportunity to voice her BOR 2 claim before the Director, she was given ample opportunity to do so before the Board, and the Adjudicator had spent a whole paragraph to analysis that claim (paragraph 46). The Adjudicator rightly stated that this piece of information came to the applicant in questionable circumstances. The Director and the Adjudicator was right to conclude that there was no state acquiescence. This case is one, even taken at its highest, does not fall under any of the 4 grounds.

Conclusion

8. I agree with the decisions of the Director of Immigration and the Board. I do not find that their reasoning process was flawed in any way, nor did the resulting decision falls outside the range of possible, acceptable outcome which are defensible in respect of the facts and the law. There was also no apparent breach of procedural requirements, nor have they adopted any procedures which failed to meet the high standards of fairness or in any way rendered its decision Wednesbury (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223) unreasonable.

9.   In my judgment, the applicant failed to show that her grounds of judicial review are reasonably arguable with a realistic prospect of success (See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).”

3.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 1 September 2017.

4.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  On 27 September 2017, she applied by summons for extension of time to appeal.  Her application was supported by an affirmation. In the affirmation, she said she only received the order on 19 September 2017. She did not explain why she failed to get it earlier in accordance with the ordinary course of post. 

5.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 Jan 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 Aug 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 Nov 2016.   

6.  The Applicant did not include any draft notice of appeal in her affirmation.  She lodged written submissions (dated 18 October and received by the court on 19 October) in support of her application.  In those submissions, written in English (like all the documents she placed before us), she complained about lack of legal representation or interpretation in the proceedings in the Immigration Department, the Board and the court below.

7.  We do not see any merit in that argument.  It is clear from the written decision of the Board that there were interpretation services available at the hearing before the Board.  In any event, the applicant was able to proceed in English and all her documents were written by her in English. 

8.  As regards legal representation, she did not explain why she did not use the service of lawyers and proceeded all along in person.  The fact that she could have legal representation was made known to her.  It appears that at some stage, she had been represented by the Duty Lawyer Service as the Notice of Decision of 10 June 2016 was sent to the applicant through them.  In the letter of 5 January 2017, the Director drew her attention to the Duty Lawyer Service and asked her to contact them as soon as possible.  Hence, in the absence of any explanation to the contrary, it seems to us that it was a matter of her own choice that she represented herself in the proceedings.

9.  The applicant also complained about the Board excusing the Director from attending the hearing.  In our judgment, it is not a valid ground of appeal. The conduct of the proceedings before the Board is a matter of case management by the Board.  It is perfectly open to the Board to decide, after reading the written materials, that the Director’s attendance could be excused.  It is not suggested by the applicant that the absence of the Director had occasioned any unfairness to her.  If she wished to elicit information from the Director, she could have applied to the Board for the same.  It does not appear from the record that she had done so.

10.  The applicant did not agree with the judge’s observations at [6] and [7] of the CALL-1 Form.  Those observations should be read together with the detailed Reasons given by the Board in its Decision of 9 March 2017 as well as the Notice of Decision of the Director of 10 June 2016.  Leave application is meant to be a filtering process and the judge is not expected to give elaborate reasons for her decision.  Reading these documents together, we found the judge’s observations to be justified.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

11.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 27 September 2017 is dismissed accordingly.