RE GURUNG DHAN MAYA

CAMP51/2018

[2018] HKCA 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 51 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 427 OF 2017)

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JUDGMENT

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

1.  By summons filed on 26 April 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 11 April 2018 refusing her leave to apply for judicial review. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 27 February 2017 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 30 July 2015 rejecting her non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Nepali national.  She first came to Hong Kong in 2003 to work as a domestic helper.  She was last permitted to remain until 18 January 2012 or two weeks after termination of contract, whichever was earlier.  She has since 19 January 2012 overstayed in Hong Kong. On 17 June 2013, she was arrested by immigration officer.  On 3 March 2014, she raised a non-refoulement claim.

4.  The applicant’s non-refoulement claim is based on her fear that if she were to return to Nepal, she would be harmed or killed by her creditor named Krishna because she had failed to repay a loan owed to him.

5.  The background of the applicant and the facts of her claim had been set out in details in the decisions of the Director and the Board, and summarised by the Judge in [6] to [9] of the Form CALL-1 dated 11 April 2018, [2018] HKCFI 709.

6.  The Director assessed the applicant’s non-refoulement claim on the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.  By a Notice of Decision dated 30 July 2015, the Director rejected the applicant’s claim.  

7.  The applicant appealed to the Board against the Director’s decision on 11 August 2015.  By a decision dated 27 February 2017, the Board dismissed the applicant’s appeal and affirmed the Director’s decision of 30 July 2015.

8.  The Board was of the view that an oral hearing was not necessary, having considered the applicant’s case and the principles set out in ST v Betty Kwan & Others [2014] 4 HKLRD 277.  On the applicant’s case, the Board found that she did not suffer any severe physical or mental injuries that attained the “minimum level of severity” required to support a claim of torture risk or BOR 3 risk.  The Board also found no evidence of involvement of the Nepali government or public officials in the dispute between the applicant and Krishna as it was a private debt dispute between them.  Further, the applicant’s claimed fear of ill-treatment or persecution was not on account of race, religion, nationality, membership of a particular social group or political opinion.  The Board had regard to the relevant COI and considered state protection and internal relocation were reasonably available to the applicant.  The Board concluded that the applicant’s claim did not come within the ambit of the torture risk, BOR 3 risk, or persecution risk ground. 

9.  The applicant wrote to the Director on 8 March 2017 and indicated that she feared she would be killed by her creditor if she were refouled to Nepal.  By letter dated 31 March 2017, the Director invited the applicant to submit additional information relevant to a BOR 2 risk[4] assessment.  The applicant did not respond to the letter.  The Director proceeded to make an assessment under the BOR 2 risk ground on the basis of the materials previously submitted by the applicant.  By a Notice of Further Decision dated 24 April 2017, the Director informed the applicant that he had rejected her non-refoulement claim under the BOR 2 risk ground.   

10.  On 19 July 2017, the applicant filed her Form 86 together with a supporting affirmation to apply for leave to judicially review the decisions of the Board.  At her request, the application was set down for hearing on 15 December 2017.  The applicant was, however, absent.  

11.  The Judge considered the application on paper and decided not to give leave to apply for judicial review.  In [3] to [5] of the Form CALL-1, the Judge pointed out that the application was out of time by just under two months and no reasons had been given for the delay, and held that solely on the ground of delay, the application for leave would have to be dismissed.  The Judge further went on to consider the applicant’s claim.  In [13] and [14], the Judge confirmed the Board’s decision not to hold an oral hearing.  The Judge further held that the grounds for judicial review relied on by the applicant were not reasonably arguable for the reasons given in [15] to [19] as follows:  

“ 15. The supporting affirmation put forward three grounds to support the application;

(1) It was procedurally unfair to not conduct an oral hearing.

(2) The TCAB had relied on hearsay/out‑of‑date COI.

(3) The decision was unreasonable because of a lack of credible COI relied on.

16. I see no merits in the grounds. I did consider whether the adjudicator acted fairly when he considered the applicant’s appeal/petition on the papers only. The applicant submits he had no opportunity to reply to submissions made by the Director but when there is a determination without a hearing then the Director will not provide the adjudicator with any written submissions. I was satisfied the decision was fair and I agreed with the adjudicator that an oral hearing could be dispensed with in this appeal.

17. The adjudicator did consider objective, up-to-date, relevant and internationally recognised COI; the ground is without particulars and without merit. The COI was credible and objective for the adjudicator to consider and rely on. It was not speculative.

18. I considered with rigourous examination and anxious scrutiny the adjudicator’s decision. I did not find any error of law by the adjudicator. I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing. I do not see it as a failure to adhere to a high standard of fairness. The substantive decision was not Wednesbury unreasonable.

19. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

12.  The 14-day period for the applicant to appeal against the Judge’s decision expired on 25 April 2018[5].  On 26 April 2018, the applicant took out the present summons seeking leave to appeal out of time.

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016). 

14.  In the present case, the applicant was late by one day.  However, she had not given any explanation for the delay.  What is more important in our consideration is whether the intended appeal has a reasonable prospect of success: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

15.  In her summons, the applicant stated she has difficulty going back to her home country, and that “the defendants” (by which we assume she mean the Director and/or the Board) had used old cases in their decisions. In her supporting affirmation, she said she feared for her life, and complained that the Director did not give sufficient time for her to look at the documents in her case and all the documents were in English.  

16.  None of these matters amount to proper grounds of appeal.  The applicant has not identified any error in the reasons given by the Judge for her decision, or pointed to any ground on which the Court of Appeal should interfere with the Judge’s decision. 

17.  On 24 July 2018, the applicant lodged a written submission, which consisted of the Director’s Decision dated 30 July 2015, the Board’s decision dated 27 February 2017 and a record of the interview she had with the immigration officer on 3 June 2015.  These documents are irrelevant to the intended appeal against the Judge’s refusal to grant leave to apply for judicial review. 

18.  As the applicant has failed to demonstrate that her intended appeal has reasonable prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

19.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.