RE UMI LATIFAH

CACV 554/2018

[2020] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 554 OF 2018

(ON APPEAL FROM HCAL NO. 799 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  By a judgment dated 25 June 2019 ([2019] HKCA 655), the Court of Appeal dismissed the applicant’s appeal against the decision of Campbell Moffat J (“the Judge”) dated 12 November 2018 in HCAL 799/2017 refusing to grant leave to her to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) rejecting her non-refoulement claim.

2.  On 18 March 2020, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal against the judgment on the following grounds:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision.

(2)  The Director and the Board wrongly assessed her case and the decisions were unreasonable and unfair. 

(3)  The right to life is protected under Article 28 of the Basic Law, Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) and in practice, by the criminal law.  The applicant should be protected from extrajudicial killings in her country.

(4)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision.  The Director and the Board were required to give reasons justifying the decisions made.

(5)  Actual situation is different from that mentioned in the Country of origin information which were referred to by the officers.  The court prefers to ignore the overwhelming evidence of violence towards minorities. 

(6)  The judges did not apply the law properly.

3.  On 20 April 2020, the Registrar of Civil Appeals directed that the applicant lodge with the court her written submissions on or before 7 May 2020.  She failed to do so and only lodged her written submissions on 27 May 2020.  Although the delay of 20 days cannot be regarded as insignificant, we are prepared to excuse the delay and allow the written submissions to go in. 

4.  In her written submissions, the applicant quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non - refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist her case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), such a notice of motion should have been filed within 28 days from the date of the judgment to be appealed from.  The applicant had substantially delayed the application for almost 8 months. 

7.  Under section 24(5), an extension of time would only be granted where very good grounds are shown, see Full Wisdom Holdings Limited v Traffic Stream Infrastructure Company Limited, CACV 266/2003, 27 July 2004; Wing Hang Bank Limited v Crystal Jet International Limited, CACV 255/2002, 9 March 2006 and Bowlstar (HK) Limited v Ho Kwai Po, CACV 156/2006, 10 July 2007.

8.  In the applicant’s supporting affirmation filed on 18 March 2020, she explained that she was detained by the Immigration Department at the material time and she was not aware of the procedural rules that caused the delay in her application.  She urged the court to grant leave to her to file the notice of motion out of time. 

9.  In our view, there is no good reason for the delay.  Though the applicant has been detained by the Immigration Department, if she was minded to proceed with the appeal, she should make the necessary enquiry, for example with the immigration officer, to find out the time limit for filing the notice of motion.  The matters deposed in the applicant’s affirmation did not provide a reasonable excuse for the substantial delay.

10.  More importantly, the applicant has no reasonably arguable ground of appeal.  The grounds of appeal set out in the notice of motion were vague and general and did not pinpoint any error of law or procedural unfairness or irregularities in the judgment.  Further, her claim for non - refoulement protection had not been assessed by the Director or the Board due to her failure to complete her non-refoulement claim form (“NCF”). The Board dismissed her petition/appeal as she had failed to provide sufficient evidence to explain that her failure to return a complete NCF was due to circumstances beyond her control.  As stated in [15] of our judgment, we agreed with the Judge’s conclusion that the decisions of the Director and the Board were not Wednesbury unreasonable and there were no errors of law nor procedural unfairness in their decisions.  In our judgment, none of the grounds stated in the notice of motion or the written submissions can constitute valid grounds of appeal to the Court of Final Appeal.

11.  For the reasons that we gave in our judgment of 25 June 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

12.  Accordingly, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal and dismiss her notice of motion accordingly.

CACV 554/2018

[2019] HKCA 655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 554 OF 2018

(ON APPEAL FROM HCAL NO. 799 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Campbell Moffat J (“the Judge”) on 12 November 2018 in HCAL 799/2017 refusing leave to the applicant to apply for judicial review. 

2.  Pursuant to the Order made by Master Au-Yeung on 14 January 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 1 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived her right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the material already lodged, in accordance with the practice adopted by this Court: Re Manjit Kaur[2018] HKCA 247; Re Miha Md Limon[2018] HKCA 278; Re Ali Arshad[2018] HKCA 304; and Re SK Sarfaraj[2018] HKCA 307.

Procedural history

3.  The applicant is an Indonesian national.  She originally submitted a non-refoulement claim by way of written representation dated 17 and 20 May 2010 to apply for torture claim protection against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) under Article 3 of the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”).  A removal order was served upon her on 26 May 2010 and she appealed against the order.  She reiterated her intention to apply for torture claim protection by a written representation received by the Immigration Department on 31 May 2010.  She was then released on recognizance on 22 June 2010.

4.  The applicant was required to attend a screening interview on 15 February 2012 but she failed to attend without reason.  She also failed to report her recognisance on 13 March 2012 and was considered to have absconded.

5.  On 23 September 2013, the Applicant submitted a further non-refoulement claim form (NCF”) by way of written representation to the Immigration Department.  

6.  The screening process commenced under the unified screening mechanism (“USM”) on 19 June 2014 and the applicant was provided with an interpreter and the services of a Duty Lawyer (“DLS”). The applicant was obliged to return the completed NCF to the Immigration Department within 28 days from the date of the issue of the written request by the Immigration Department and the consequence of failure to comply would be treated as a withdrawal of the NCF claim. 

7.  By the letter dated 10 July 2014, the Immigration Department informed the DLS that the applicant was required to return her completed NCF by 7 August 2014.  Despite several reminders, the applicant did not submit her NCF and therefore, her claim was deemed to be withdrawn on 8 August 2014.   

8.  On 11 November 2015, the applicant made a claim under CIDTP, which was deemed to be a request to re-open her original claim.  By letters dated 13 November and 1 December 2015, she was required to provide information in support of after request but she failed to do so. 

9.  By Notice of Decision made by the Director of Immigration (“the Director”) on 16 December 2015, the applicant’s claim was dismissed on all the applicable grounds.

10.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 24 July and 15 September 2017, the Board dismissed the appeal on 13 October 2017.  At the hearing, the applicant explained that she had lost the NCF when she moved from place to place and she did not know she might seek assistance from DLS and/or the Immigration Department.  The Board did not accept her explanation and found that her failure to return the completed NCF was due to her carefree attitude in not following up diligently her application rather than due to circumstances beyond her control, see [15] and [16] of the Board’s decision.  Having considered the evidence as a whole, the Board found that the applicant had failed to establish that due to circumstances beyond her control, she had not been able to return the completed form pursuant to section 37ZG(3) of the Immigration Ordinance (Cap 115).  Based on the aforesaid reason, the Board confirmed the Director’s decision and dismissed the applicant’s appeal.

The Judge’s decision

11.  The intended application for judicial review was in respect of the decision of the Board.  The Form 86 filed on 23 October 2017 did not contain any grounds for seeking relief.  In the supporting affirmation filed on the same day, the Applicant advanced the following grounds:

(1)   Failing to consider the concept of state acquiescence, or extended state acquiescence;

(2)   Failing to make sufficient enquiry into the applicant’s case;

(3)   Failing to provide adequate reasons as to the decision made;

(4)   Failing to investigate the materials on country of origin information (“COI”);

(5)   Failing to place weight on relevant information;

(6)   Placing weight on irrelevant information;

(7)   Failing to consider a consistent system of human rights violations;

(8)   Placing weight on irrelevant matters, or on inaccurate or incorrect facts;

(9)   Failing to call for psychological or psychiatric reports;

(10)   Applying incorrect standard of proof;

(11)   Failing to provide reasonable basis for rejecting the applicant’s credibility;

(12)   The decision maker was not the interviewer; and

(13)   There was no proper basis for consideration of internal relocation.

12.  On 12 November 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [13] for her refusal to grant leave:

“11. In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support. The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Merely reciting oft cited phrases is of little use to the court without more. I can find no connection whatsoever between these grounds and the issue of filing within time and the refusal to extend that time. They are entirely without merit. I have nevertheless gone on to consider whether there is any evidence of unlawfulness, unreasonableness or unfairness by those bodies in their consideration of that issue.

Conclusion

12. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour, whether in person or in writing, with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately on the available information. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

The appeal

13.  The applicant filed the Notice of Appeal on 23 November 2018 and advanced the following grounds of appeal:

(1) The Judge wrongly exercise her discretion to refuse her application for leave for judicial review;

(2) By the time the Director’s decision on BOR 2 risk was made, the applicant had lodged the appeal with the Board regarding her claim on BOR 3 risk, torture risk and persecution risk.  Therefore, the Judge should not apply the time restriction in the present application.

(3) The Court of Final Appeal held that the right to freedom from “Cruel, Inhuman or Degrading treatment or punishment as enshrined in Article 3 of the Bill of Rights under section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 is an absolute and non-derogable right with no exception.

14.  In the applicant’s supporting affirmation of her present application, she just repeated the intended grounds of appeal as set out in Form 86.

Discussion

15.  The grounds of appeal as set out in the Notice of Appeal and in her supporting affirmation are entirely unrelated to the decision made by the Judge as appeared from the CALL-1 Form.  They are also unrelated to the decisions made by the Director and the Board.  Neither the Director, the Board nor the Judge considered the applicant’s case on merits as the applicant had failed to complete her NCF and her case was thus deemed to be withdrawn.  The Judge had rightly confirmed the Board’s decision that the applicant had failed to provide sufficient evidence as required to explain her failure to return a completed NCF due to circumstances beyond her control.  We agree with the Judge’s conclusion that the decisions of the Director and the Board were not Wednesbury unreasonable, and there were no errors of law nor procedural unfairness.  The grounds of appeal are plainly not arguable and doomed to fail.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.