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CAMP 425/2022
[2023] HKCA 392
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 425 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 1408/2018)
____________________
| RE: |
Magar Nisha |
Applicant |
____________________
| Before: |
Hon Kwan VP and Barma JA in Court |
| Date of Judgment: |
28 March 2023 |
___________________
J U D G M E N T
___________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 23 September 2022 refusing to extend time for the applicant to appeal against his decision dated 1 April 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 June 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 5 March 2018 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”); and (ii) the Director’s Decision itself.
Background
2. The applicant is a national of India. She entered Hong Kong on 4 April 2015 as a foreign domestic helper, and she was arrested on 4 September 2017 for making a false statement to an immigration officer. On 31 October 2017, she raised a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by her parents’ creditor and an unnamed man. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 5 March 2018, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 1 June 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing her appeal, the Board found that most, if not all, of the material bases to the applicant’s non-refoulement claim had been fabricated or were wholly unreliable.
The Judge’s decision
6. The applicant filed a Form 86 on 17 July 2018 seeking to judicially review the Director’s and the Board’s Decisions, without setting out any grounds. In accordance with the principles stated in Re Moshsin Ali [2018] HKCA 549, the Judge amended the Form 86 and treated the intended judicial review as against the Board’s Decision only.
7. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL‑1 Form:
“11. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
12. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13.(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
13. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
14. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
15. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The present application for extension of time to appeal
8. The applicant’s last known address in her Form 86 was at Castle Peak Bay Immigration Centre. According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at Castle Peak Bay Immigration Centre on 1 April 2021, but these were returned undelivered.
9. The Immigration Department however informed the court on 15 April 2021 that the applicant’s last known address was at 286 Reclamation Street (“the 1st Address”). Another letter enclosing a copy of the CALL-1 Form was sent to the 1st Address on 22 April 2021, and this was not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. By the time the letter of 22 April 2021 was sent to the applicant at the 1st Address, the 14-day period had already lapsed.
11. In any event, the applicant did not file a Notice of Appeal, but she did on 24 August 2022 (i.e. over 16 months after the letter was sent to her at the 1st Address) take out a summons in the Court of First Instance seeking “to set aside” the Judge’s refusal to grant her leave to apply for judicial review (which we will take to be an application for extension of time to appeal against that decision), in which her address was stated to be at 203 Reclamation Street (“the 2nd Address”). In her supporting affirmation filed on the same date, she deposed that she was only informed of the Judge’s decision by an immigration officer, and that her lack of language ability and legal representation had rendered the proceedings unfair.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 23 September 2022[6].
13. By a summons filed on 14 October 2022, the applicant renewed her application for an extension of time to appeal before this court. In the summons, the applicant stated that she wished to set aside (which we take to mean that she seeks leave to appeal against) the decision given by the Judge on “23 September 2022”, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 1 April 2021. Although in her summons the applicant purported to seek leave to file a Notice of Appeal in respect of the decision of the Judge dated 23 September 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 1 April 2021, by which leave for judicial review was refused.
14. In her supporting affirmation as well as her written submissions lodged on 28 October 2022, the applicant in substance repeated the complaints stated in her affirmation in support of the application for extension of time before the Judge.
Discussion
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
16. The applicant has failed to provide the date on which she learned of the Judge’s decision dated 1 April 2021. Further, the second letter from the court sent to her at the 1st Address on 22 April 2021 was not returned undelivered, and the inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision as from that date, albeit that by then the 14-day period in which she was allowed to appeal had already lapsed.
17. Having had notice of the Judge’s decision as from around 22 April 2021, the applicant did not take out the application for extension of time to appeal in the court below until over one year later, on 24 August 2022. The applicant has failed to provide any or any reasonable explanation for this serious delay. This delay is substantial, unexplained and unacceptable, and the application is liable to be dismissed on this basis alone.
18. Furthermore, the applicant has failed to provide any reasonable explanation for her failure to inform this court of any change of address (such as her move to the 2nd Address) promptly and in good time. She must bear the consequences of such failure.
19. Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.
20. We have nonetheless proceeded to consider the merits of the intended appeal.
21. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
22. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.
24. Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit. In this regard, we note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.
25. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
26. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 14 October 2022 is accordingly dismissed.
(SUSAN KWAN)
Justice of Appeal |
(AARIF BARMA)
Justice of Appeal |
| The applicant acting in person |
[1] [2021] HKCFI 859
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 2834
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