RE BERMUDEZ EDNA LABADCHAN

CACV 351/2020

[2022] HKCA 1254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2020

(ON APPEAL FROM HCAL 2889 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 30 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Lam VP (as he then was), Cheung and Au JJA)  judgment of 22 July 2021 (“the Judgment”)  ([2021] HKCA 1046).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 July 2020, by which the Deputy Judge refused her application for leave to apply for judicial review ([2020] HKCFI 1743).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, taking into account the Court’s summer vacation in the month of August, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 20 September 2021.  The applicant was therefore over eight months late in taking out her application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant complained that the Court was wrong as a matter of law for failing to apply the principles of procedural fairness, irrationality to the Director of Immigration’s decision and that she would be killed or harmed if she returned back to her country. She also claimed the actual situation in her home country was different from the Country of Origin information and that the Director and the Courts “preferred to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining”.

7.  In her supporting affirmation filed on 30 May 2022, the applicant stated:

“I am the Applicant herein.

Leave be granted to me to file Notice of Motion out of time as I was unaware of the rules regarding the 14-days time limit and was unrepresented.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant should lodge her written submissions on or before 13 June 2022.  She however lodged her written submissions out of time on 22 June 2022.  In the written submissions, the applicant repeated her claim and personal background.  She also cited some legislations, such as the Basic Law, Hong Kong Bills of Rights Ordinance, and Convention against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment.  She then quoted some passages from Secretary for Security v Sekthevel Prabakar[2005] 1 HKLRD 289, AM v Director of Immigration and William Lam HCAL 102/2012, ST v Betty Kwan CACV 115/2013, Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong HCAL 1/2014, R v Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033, and Regina v Secretary of State for the Home Department [1987] 1 WLR 1482, as support for certain general principles. She also argued that the decision maker was Wednesbury unreasonable.

9.  At the outset, the applicant’s delay of over eight months was most substantial and she failed to provide any good reason or evidence to explain her delay.  Mere ignorance of the deadline as asserted is not a good reason for the delay.

10.  More importantly, her intended appeal has no merit at all.  All the matters raised by the applicant in the present application are new and not argued at first instance or on appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, her arguments are all general and bare assertions unsupported by particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  She has also failed to show how the legal propositions and cases as stated in her written submissions relate to her case.  More pertinently, none of her submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

11.  Further and in any event, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 30 May 2022 is dismissed.

The applicant acting in person

CACV 351/2020

[2021] HKCA 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2020

(ON APPEAL FROM HCAL 2889 OF 2018)

____________________

____________________

____________________

J U D G M E N T

____________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 30 July 2020 (“the Deputy Judge’s Decision”) [2020] HKCFI 1743, refusing to grant her leave to apply for judicial review.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

A.      Background

3.  The applicant is a national of Philippine.  She first came to Hong Kong as a domestic helper.  Her employment contract however was terminated prematurely on 9 August 2018.  She did not depart and was arrested on 18 October 2018 for overstaying.  On 20 October 2018, the applicant was convicted of the offence of breach of condition of stay by overstaying.  On 8 November 2018, a removal order was served on her.

4.  On 17 December 2018, by way of a Form 86 (dated 6 December 2018), the applicant acting in person sought leave to apply for judicial review.  In the front page of the Form 86 under the box “Judgment, order, decision or other proceeding in respect of which relief is sought”, it was stated that the decision in respect of which relief is sought is the decision of the Director of Immigration (“the Director”) dated 16 November 2018, “dismissing the application by ruling that the Applicant fails to establish a case for non-refoulement whether under the principles of Torture or BOR3 risk^[1] or Persecution^[2]” (the “2018 November Decision”).

5.  The applicant also requested an oral hearing of her leave application under Order 53, rule 3(3) of the Rules of the High Court if leave is not to be granted on paper.

6.  In the Form 86, under “the 1^st Ground” of intended judicial review, it was stated that the Director erred by “refusing to accept the Applicant’s non-refoulement claim for screening before a decision can be reached whether non-refoulement claim is established or not” (emphasis added).

7.  It is pertinent to note that the applicant did not exhibit a copy of the 2018 November Decision to the supporting affirmation dated 6 December 2018.

8.  Apparently, in light of the absence of a copy of the 2018 November Decision, by a letter dated 14 February 2019, the clerk (“the Clerk”) to the Deputy Judge wrote to the Removal Assessment Section of the Immigration Department asking for copies of any of the relevant decisions made by the Director and the Torture Claims Appeal Board (“TCAB”) relating to the applicant’s non-refoulement claim.

9.  By a letter dated 20 February 2019, the Immigration Department provided the following information to the Deputy Judge:

(1)  The applicant’s non-refoulement claim was considered as made on 18 December 2018, and that the Notice to Persons Making a Non-refoulement Claim and a Non-Refoulement Claim Form (“NCF”) were served on the applicant on 19 December 2018.

(2)  The applicant submitted the NCF (completed through Duty Lawyer Service) on 24 January 2019 and a screening interview was conducted with her on 11 February 2019.

(3)  By way of a decision dated 18 February 2019 (“the Director’s Feb 2019 Decision”), the Director rejected the applicant’s non‑refoulement claim on the BOR3 risk, the persecution risk, the torture risk and the BOR2 risk^[3].

10.  Upon the Clerk’s further request, the Immigration Department by a letter dated 20 March 2019 provided a copy of the Director’s Feb 2019 Decision to the court.

11.  It is thus plain from the above that the 2018 November Decision sought to be challenged by the applicant under the Form 86 cannot be the Director’s decision to refuse her non-refoulement, which was only made on 18 February 2019, some three months later.  Indeed, as it can also be seen from the above, at the time when the applicant filed the Form 86 on 17 December 2018, she was not considered by the Director as having formally made her non-refoulement claim.  In short, there was no 2018 November Decision and the Form 86 of 17 December 2018 is defective.

12.  Notwithstanding this, until early May 2019, the Clerk continued to write to the Immigration Department and the TCAB asking for copies of any decisions relating to the applicant’s non-refoulement claim, including any TCAB decision.

13.  By a letter dated 9 May 2019, the TCAB informed the Clerk that it had not received any appeal or petition from the applicant, and undertook to inform the court immediately if such a decision was made.

14.  In light of all the above, by a letter dated 9 May 2019, the Clerk wrote to the applicant pointing out to her in summary the above history of her non-refoulement claim and the fact she had referred in the Form 86 to a decision made in November 2018, and asking her to confirm what decision her leave application for judicial review referred to.

15.  By a letter received by the court on 17 October 2019 (thus some five months later), the applicant provided to the Clerk a copy of the Director’s 2019 Feb Decision.

16.  It appears that the Deputy Judge then treated the applicant’s leave application as one intended to challenge the Director’s 2019 Feb Decision.  Hence, by a letter dated 28 October 2019, the Clerk wrote to the applicant informing her that “her application for judicial review of the [Director’s 2019 Feb Decision] should be dealt with by the TCAB”, and that her then leave for judicial review application would be dealt with by a written decision by court (thus on paper).

17.  On 1 November 2019, the applicant wrote to the court asking for a stay of her leave application until the outcome of her appeal to the Board.

18.  The Deputy Judge did not accede to her request for stay and proceeded to consider her leave application on paper despite the applicant’s request for an oral hearing as stated in her Form 86.

B.      The Deputy Judge’s Decision

19.  As mentioned above, the Deputy Judge treated her leave application as one seeking to judicially review the Director’s 2019 Feb Decision.  As such, he dismissed the application on the basis that there existed an alternative remedy of a statutory appeal against that decision to the TCAB, and there were no exceptional circumstances in the case to justify the court to exercise its discretion to entertain a judicial review challenge of that decision despite the alternative remedy.  See [9] ‑ [13] of the Deputy Judge’s Decision.

C.      This appeal

20.  By way of a Notice of Appeal dated 11 August 2020, the applicant appealed against the Deputy Judge’s Decision.  Her ground of appeal is that:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.” [sic]

21.  The applicant did not file any supporting affirmation nor did she lodge her written submissions as directed by the Registrar of Civil Appeals.

D.      Discussion

22.  The appeal is clearly without merits for the following reasons.

23.  The applicant’s only stated ground of appeal relates to the TCAB decision presumably rejecting the applicant’s subsequent appeal lodged against the Director’s 2019 Feb Decision.  That has nothing to do with the Deputy Judge’s Decision.  This is therefore not a viable ground of appeal and this appeal should be dismissed on that basis alone.

24.  However, in light of the history of the leave application and the applicant’s non-refoulement claim as we have summarized above, we will at the same time point out that the Deputy Judge is also clearly incorrect in treating the applicant’s application for leave to apply for judicial review as one challenging the Director’s 2019 Feb Decision and dismissed it on that basis.  This is so as the leave application dated 6 December 2018 and filed on 17 December 2018 could not have been intended to challenge the Director’s 2019 February Decision.  Hence, by way of that application, the court was not seized with the jurisdiction to deal with the Director’s 2019 Feb Decision.

25.  When the matters are read in the round and together, it appears that the 2018 November Decision sought to be challenged by the applicant relates to an alleged decision said to be made by the Director refusing to allow the applicant to even submit a non-refoulement claim for screening (see the quote from the Form 86 at [4] and [6] above), and hence it relates to a decision dated before the formal making of the non-refoulement claim on 18 December 2018.

26.  The confusion was no doubt contributed to by the unclear and equivocal way the Form 86 was prepared and drafted by the applicant, the fact that she herself also provided a copy of the Director’s 2019 Feb Decision to the court in October 2019 and the lack of an oral hearing which could have clarified the confusion.

27.  However, despite the Deputy Judge’s error in dealing with the leave application on the basis that it intended to challenge the Director’s 2019 Feb Decision, this appeal is still without any merits and should be dismissed.  The intended challenge against the non‑existent 2018 November Decision is clearly misconceived.  For the same reasons, the Deputy Judge’s failure to give the applicant a hearing despite her request made under Order 53, rule 3(1) did not cause any real prejudice to the applicant and does not by itself amount to a valid ground of appeal.

E.      Disposition

28.  For all these reasons, the applicant’s appeal has no merits and we dismiss it accordingly.