RE RAMIREZ BELTRAN CLAUDIA LORENA

CAMP 209/2020

[2021] HKCA 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 515/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 14 August 2019 refusing to grant extension of time for her application for leave for judicial review and dismissing her application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 29 August 2016 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 23 September 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Colombia.  She last entered Hong Kong on 15 September 2011 as a visitor and was permitted to remain until 14 December 2011. She overstayed and surrendered to the authorities on 14 March 2012.  She lodged a non-refoulement claim on 14 March 2012. 

3.  The applicant claimed that she would be harmed or killed by guerrillas from the Fueras Armadas Revolucionarias de Colombia (“FARC”) because they thought the Applicant was involved in some missing firearms.  The details of the applicant’s claim have been summarised by the judge at [2] to [15] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 September 2015 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 August 2016, the Board dismissed the appeal on 29 August 2016 (“Board’s Decision”).

6.  The Board considered the past incidents between the applicant and the FARC and the fact that her mother and grandmother in Colombia had not been disturbed since June 2011.   The Board held that the risks of the proscribed harms to the applicant were low.  The Board was also satisfied at [69] that state protection would be available for the applicant and at [77] that internal relocation would be viable.

7.  By a Notice of Further Decision dated 15 December 2016, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.  The applicant did not appeal against this decision. 

The judge’s decision

8.  In the Form 86 filed on 28 March 2018 and the supporting affirmation, the applicant advanced the following grounds for seeking relief, as summarized by the judge at [30] – [32] of CALL-1 Form:

“30. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

31. The Applicant also complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused.

32. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.”

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed her application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [41] to [57] of the CALL-1 Form:

“41. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review. If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.

42. In the present case, the Board’s decision was issued on 29 August 2016. I am prepared to accept the Applicant’s saying that she received it in October 2016. She applied for leave for judicial review only on 28 March 2018. Excluding the 3-month grace period for filing, the application was about 14 months late.

43. The Applicant said she did not know there was a time limit. That was not a good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. The Applicant's application for leave for judicial review involved no issue of general importance and her complaints had no merits.

44. The Applicant mentioned she did not have legal representation for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 23 September 2015.

45. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

46. The Applicant raised her language problem.

47. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

48. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

49. The Applicant complained she received the appeal bundle only a few days before the Board hearing.

50. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

51. The Applicant said she got the appeal bundle on 4 August 2016. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 11 August 2016. The bundle was served on the Applicant in time.

52. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

53. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

54. The Applicant said she answered all the questions honestly in the Board hearing. That means she knew what was asked and how to answer. She was not confused.

55. There was no evidence the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay.

56. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

57. The Applicant's application for leave for judicial review is late. She fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider her late application. I refuse to grant extension of time for the Applicant to apply for leave for judicial review. Her application is dismissed.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 7 May 2020, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ Bruno Chan on 7 October 2020.

11.  By a summons dated 12 November 2020, the applicant renewed her application for extension of time to appeal before this court.  In the summons she stated that:

“the court has order that the extension time for leave for judicial review be refused or dismissed, so now I want apply for appeal against this decision. Rest of the grounds are in the affirmation set.”

12.  The applicant gave the grounds for the leave application in a paper entitled “Grounds of the application” attached to the affirmation filed on the same day.  The applicant stated that:

“1. I am not agree with the decision which made on 02 November 2020, because this decision made me unhappy or irrational.

2. Similar to this, there are many more unacceptable and unexplainable grounds, which are shown to refuse my summon to extend the time to appeal for judicial review.

3. I am a genuine non-refoulement claimant who face all the dangerous problems and harassment and torture in my home country. I am unable to find any place to stay safely in my country, so I fled abroad to save my life.

4. If I did not run away, I would certainly have been killed by my enemies.  My problem are getting more and more life threatening day after day.  I had no other choice but to escape to Hong Kong.”

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 29 January 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

15.  We have considered the documents filed for the application before us and her explanation for the delay in bringing the intended appeal advanced before DHCJ Bruno Chan.  We are not satisfied that the applicant has provided any reasonable explanation for her delay.  That said, we will nonetheless go on to consider the merits of the intended appeal.

16.  In the “Grounds of the application”, the applicant claimed that she was not satisfied with the decision made on 2 November 2020.  It is not clear which decision she was referring to and in any event, she did not substantiate any error in the decisions in the court below.  The general assertion that there were errors in the decision, without any indication of what those errors might be, takes matters no further.  The applicant has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

17.  In any event, having examined the CALL-1 Form dated 14 August 2019 and the decision to refuse extension of time to appeal dated 7 October 2020, we can see no error in them.  The application may be dismissed on this ground alone.

18.  As for the applicant’s claim that it is unsafe for her to return, set out in paragraphs 3 and 4 of the “Grounds of the application”, the Board has already held that she is unlikely to face any of the proscribed risks of harm upon her return.  We agree with the judge that the applicant has failed to substantiate any public law error in the Board’s Decision.  This ground is therefore not reasonably arguable.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 12 November 2020 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.