RE PERVIN JAHANARA

CAMP 406/2022, [2023] HKCA 1064

On an intended appeal from [2022] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 406 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1098 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 24 May 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support her application. Despite directions given by the Registrar of Civil Appeals, she has not lodged any written submission.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 March 2019 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 5 June 2018 which rejected her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 42. She last entered Hong Kong on 20 November 2014 and was given permission to remain to work as a foreign domestic helper until 20 December 2016. She overstayed and was arrested by the police on 9 August 2017. She raised a non-refoulement claim on 12 August 2017 based on fear of being harmed or killed by members of the Awami League (“AL”) as she was a member of a rivalry political party, Bangladesh Nationalist Party (“BNP”). The details of the applicant’s claim were set out in the Director’s decision at [7]. We will not repeat them.

6.  The Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

7.  The Board heard the applicant’s appeal on 28 November 2018, during which the applicant gave evidence and answered the Board’s questions. The Board dismissed the appeal. In gist, the Board rejected applicant’s evidence as vague, limited, inconsistent and implausible and found her claims about her political activities and problems to be complete fabrications. The Board did not accept she was ever targeted by the AL, or she was ever involved with the BNP, or she would face harm from the AL members if she returned to Bangladesh. The Board further considered that, even accepting the applicant’s case, she was simply a grass root level supporter of the BNP and would not have been targeted by the AL as claimed. The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 24 April 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the Board’s decision. She set out several grounds for seeking relief in her affirmation, which the Judge had summarised as follows (see [13] of Form CALL-1):

(1)  She was given the hearing bundle shortly before the hearing before the Board. She had limited time to make preparation. The hearing was unfair.

(2)  The hearing bundle was in English. She could not afford to obtain the service of an interpreter.

(3)  Despite her request, the Board did not inform her of its decision by phone.

(4)  She was confused at the hearing before the Board and could not understand what happened.

(5)  She answered the Board’s questions honestly. She was aggrieved that he Board found her credibility questionable.

(6)  The Board relied on materials that are not officially recognized or are hearsay, and cases that are outdated. Its decision was based on speculations.

(7)  The Director assessed the BOR2 risk ground without any screening.

(8)  The Director and the Board should go to her country to see the country situation for themselves.

9.  In her Form 86, the applicant requested an oral hearing. The case was, however, not listed for hearing. Instead, on 15 March 2022, the Judge’s clerk wrote to the applicant as follows:

“Dear Sir/Madam,

HCAL 1098 of 2019

  We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

  However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so. Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.

  If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper. A written decision will be sent to you at your last known address.”

10.  The applicant did not respond to the letter. She also did not put in any written submission.

11.  The Judge refused the applicant’s application. In [2] to [5] of the Form CALL-1 dated 24 May 2022, he explained his decision to determine the application without an oral hearing as follows:

“2. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

3. The applicant did not respond to the court’s letter.

4. Under Order 53 rule 3(3) of the RHC, it provides:

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

  Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.”

12.  In [17] and [18], the Judge dealt with the grounds relied on by the applicant as follows:

“17. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application for the reasons below:

(1) If she did not have sufficient time to prepare her case, she should have told the adjudicator and asked for an adjournment. This was not recorded in the Board’s Decision. In fact, as she said, she had answered the adjudicator’s questions. The Board found against her because of the evidence she had given before the Board. There is no evidence that she did not know what happened at the hearing. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” The Board has no obligation to notify her by phone. The absence of this service will do no injustice to her case. Grounds (1) to (5) fail.

(2) Ground (6) is only her opinion without any evidence in support.

(3) Ground (7) fails because this is not the fact.

(4) Ground (8) fails because the Director or the adjudicator can rely upon the country of origin information without going to her country themselves.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The time for the applicant to do so expired on 7 June 2022.

14.  By a summons filed on 25 July 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper and by his decision handed down on 30 August 2022[6] refused the application.

15.  On 5 October 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

16.  In considering whether to extend time for appealing against the refusal of 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

17.  The applicant was about seven weeks late, which is a substantial delay. The applicant explained that she did not receive documents from the court and it was the immigration officers who told her that her application had been dismissed. The court record showed that the Form CALL-1 and the sealed court order were sent to the address provided by the applicant in her letter to the court dated 16 July 2019. The documents have not been returned by the Post Office. We are therefore not satisfied that the applicant has satisfactorily explained the delay. Nevertheless, the most important consideration is the merits of the intended appeal, to which we will now turn.

18.  The relevant legal principles for considering the merits of an intended appeal have been set out comprehensively by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In her affirmation, the applicant stated that she did not agree with the Judge’s decision. She also complained that the process was totally wrong, but did not elaborate on what were the errors.

20.  In our view, it is arguable that the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.

(1)  Under Order 53 rule 3(3) of the Rules of the High Court, a judge “may determine the application for leave without a hearing, unless a hearing is requested in the notice of application”. In the present case, the applicant has requested an oral hearing in her Form 86. In consequence, the Judge’s discretionary power to determine the application without a hearing has no application.

(2)  It would appear from the letter from the Judge’s clerk dated 15 March 2022 (see [9] above) that it was with a view to avoiding attendance in court due to the pandemic that the judge decided not to hold an oral hearing to deal with the applicant’s application. In light of the clear wording of Order 53 rule 3(3), it was not open to the Judge to do so.[7]

(3)  Likewise, the reliance on the underlying objectives in Order 1A rule 1(b) and Order 1B of the Rules of the High Court is misplaced. The court’s case management power cannot afford a proper basis for displacing the right to an oral hearing having regard to Order 53 rule 3(3).

(4)  Nor can the decision not to hold an oral hearing be supported by the reasons stated in [2] and [5] of the Form CALL-1. Among other things, the Judge was mistaken in stating (at [2]) that the applicant had been given a hearing date and/or she had already put in lengthy submissions.[8]

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has a real prospect of success. Accordingly, we allow the applicant’s summons filed on 5 October 2022 and make the following orders:

(1)  The applicant’s application for extension of time to appeal is allowed.

(2)  The time for the applicant to issue a notice of appeal to appeal the Judge’s decision is extended to 21 days from the date of this judgment.

22.  To save time and costs of the intended appeal, we further direct that after the applicant has issued the notice of appeal:

(1)  The lodging of appeal bundle and written submission be dispensed with; and

(2)  The appeal be disposed of on paper unless the applicant indicates in writing that she does not agree to it.