SHEETAL NEUPANE v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 30/2017

[2018] HKCA 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 30OF 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.  On 9 November 2017, we (Lam VP and Barma JA) handed down our judgment refusing to grant extension of time to the Applicant to appeal against the decision of M Poon J of 1 September 2017.

2.  By a Notice of Motion of 23 November 2017, the Applicant seeks leave to appeal to the Court of Final Appeal.  In the Notice, the Applicant stated as follows:

“ 1. The Justices mentioned that I did not explain why I had failed to get the order earlier in accordance with the ordinary course in post. Hence, “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” (as per Paragraph 5). This is a question that is out of my hands as I did not control over the postal service. Moreover, where there are actions that require explanations, fairness may well require that there should be an oral hearing: see R (West) v Parole Board; R (Smith) v Parole Board (No. 2) [2005] I WLR 350 at §50. The Justices decided to dispose of the intended appeal without offering me with a proper explanation. There was no communication between the Court and me that I should justify the delay in my written submissions.

2. It was commented by the Justices that “the Applicant did not include any draft notice of appeal in her affirmation” (as per Paragraph 6) for the application by summons for extension of time to appeal supported by an affirmation.  I did bring with me a copy of the draft notice of appeal but the staff at the counter refused to take it.  It should not be used against me given the staff at the Registrar has exercised their case management power of not accepting my application.

3. It was further commented that “As regards legal representation，she did not explain why she did not use the service of lawyers and proceeded all along in person”.  It was also further mentioned that “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” (as per Paragraph 8).  This is in itself contradictory to the observation that there was no merit in the argument of lack of interpretation in the proceedings.  Without proper legal assistance, it is simply presumptuous that I would be able to understand the letter of 5 January 2017 and to contact the Duty Lawyer Service.  My non-refoulement claim was referred to the Duty Lawyer Service by the Immigration Department for the first three applicable grounds under the Unified Screening Mechanism.  It was not unreasonable for me to think that the same would apply in the case of determining my rights under BOR2.  It was not, I submit, a matter of my own choice that I represented myself in the proceedings.

4. In terms of the absence of the Director’s attendance at the hearing before the Board, I did not receive any notification that the Director’s attendance would be excused up and until I showed up at the hearing on that day.

5. I hereby request for a hearing to be scheduled with the assistance of a Nepalese interpreter.”

3.  The relevant criteria for granting such leave are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision.”

4.  Pursuant to Practice Direction 2.1 para 3, the Applicant lodged with the Court her skeleton submissions of 7 December 2017, which is simply a reproduction of the statements already made in the Notice of Motion as set out above.

5.  In the documents lodged by her, the Applicant did not set out any questions of great, general or public importance for submission to the Court of Final Appeal in the Notice.

6.  As stated in para 3 of Practice Direction 2.1, subject to any specific directions to the contrary, applications for leave to appeal to the Court of Final Appeal are processed on the papers without any oral hearing.

7.  As explained in Ng Yat Chi v China Resources (Holdings) Co Ltd CACV 263 of 2005, 27 July 2016 and 李艷梅及九龍城裁判法庭 HCMP 1326 of 2016, 15 November 2016, a motion for leave to appeal to the Court of Final Appeal falls within the scope of “interlocutory applications” under Order 59 Rule 14A of the Rules of the High Court.  By virtue of that provision, the Court may dispose of such an application without holding any oral hearing. There is no absolute right to an oral hearing.

8.  It is a matter of case management and the Court will have regard to a host of factors in the exercise of its power, always guided by the underlying objectives in Order 1A Rules 1 and 2 of the Rules of the High Court.  Amongst those factors, the complexity of the application and the benefit that the Court may derive from an oral hearing, the nature of the application, the conduct of the parties and the history of the proceedings would be taken into account.  Of course, there could be other relevant factors depending on the facts of each case and this list is not exhaustive.  

9.  For an application for leave to appeal to the Court of Final Appeal, given this Court is familiar with the matter (having processed the case when giving the decision which forms the subject matter of the intended appeal), and the opportunity of an Applicant to renew the application before the Appeal Committee of the Court of Final Appeal, it is rare in present days for an oral hearing to be held for such application.

10.  Thus, though the Applicant asked for an oral hearing in the motion, having considered the grounds put forward and her submissions, we are of the view that the application can be disposed of on the papers.  

11.  The decision under challenge is our decision on the Applicant’s application for extension of time to appeal against the refusal of leave to apply for judicial review.  That application was also interlocutory in nature.

12.  Directions were given by the Registrar of Civil Appeals to the Applicant on 4 October 2017 in accordance with paragraph 36 of Practice Direction 4.1 concerning the processing of the application.  Paragraph 5 of those directions clearly stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers and if so, proceed to do so.

13.  Hence, the Applicant was aware of the possibility of the disposal of her application for extension of time without any oral hearing and she should set out all the matters she relied upon in the documents lodged with the Court.

14.  With such knowledge, she lodged her written submissions on 19 October 2017.  In those submissions, she did not request for an oral hearing.

15.  Her intended application for judicial review was made in respect of the decision of the Torture Claims Appeal Board of 9 March 2017.  The Board held an oral hearing on 11 January 2017.

16.  Her application for leave was refused by M Poon J without any oral hearing on 1 September 2017.

17.  We have considered the application for extension of time based on the grounds advanced by her in her documents supporting her application for extension of time.  Those grounds were summarized in our judgment of 9 November 2017.  In our view, it was plain that those grounds were wholly devoid of merits and we explained why we came to that view in our judgment.  The disposal of the application was not a complicated matter and we could not see any unfairness to the Applicant in not affording her any oral hearing.

18.  The Applicant referred to R (West) v Parole Board (No 2) [2005] 1 WLR 350 at [50].  We are (as this Court was when deciding to proceed on the papers in dealing with the application for extension of time) aware of the relevant principles and they were also discussed in the context of a CAT application in ST v Betty Kwan [2014] 4 HKLRD 277 at [20] to [36]. 

19.  However, it has to be stated that the role of this Court in an application for extension of time is very different from the role of the TCAB.  In an application for extension of time to appeal, this Court is not examining the primary facts and findings by the TCAB and the conclusions of the judge (in refusing to grant leave) as if we were the primary decision maker.  The issues were more distilled and we only considered the prospect of an appeal by reference to the grounds advanced by the Applicant on the basis that she had set out everything she needed to say on every material aspect of her application (in light of the direction by the Registrar).  

20.  Having now reconsidered her grounds in light of her latest submissions, we do not regard the grounds set out in her Notice of Motion, repeated in her submissions of 7 December 2017, as having any arguable merit.

21.  The Applicant has not demonstrated that there is any question of great, general or public importance being involved in the intended appeal.

22.  Nor can we see any basis to grant leave on the “or otherwise” limb. 

23.  For these reasons, we do not consider it appropriate to grant leave to the Applicant and we dismiss the Notice of Motion accordingly.