CAMP 171/2021
[2021] HKCA 1900
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 225 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1781 OF 2018)
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| Before: | Hon Au and Chow JJA in Court |
| Date of Judgment: | 16 December 2021 |
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
1. This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 7 August 2020, refusing to grant the applicant extension of time to apply for leave to apply for judicial review and dismissing her application for leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 1876). An earlier application for extension of time to appeal was refused by the Deputy Judge on 10 May 2021 (“the EOT Decision”) ([2021] HKCFI 1186).
2. The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 30 September 2015 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 April 2015 and rejecting her claim for non-refoulement protection (“the Director’s Decision”).
3. Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
Background
4. The applicant is a national of Indonesia. She entered Hong Kong on 30 July 2011 as a domestic helper. She was granted an extension of stay until 13 September 2013 and overstayed. She was arrested by the police on 14 July 2014 and subsequently made her non-refoulement claim on 30 November 2014 on the basis that if refouled to Indonesia, she feared that she would be harmed or killed by her step-father because of her disclosure of his rape on her. Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [6] of the Leave Decision.
5. By a Notice of Decision dated 22 April 2015, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR3 risk[2], and persecution risk[3].
6. On 4 May 2015, the applicant appealed against the Director’s Decision to the Board. After considering the evidence and the general principles and circumstances under which an oral hearing was required as set out in ST v Betty Kwan [2014] 4 HKLRD 277, the Board considered that there was no dispute as to the facts or law in this claim which required an oral hearing to resolve. It therefore proceeded to consider the applicant’s appeal on paper. Having assessed the evidence, the Board considered that the applicant failed to establish her claim on all applicable grounds and that state/police protection would be available and relocation was an option open to her. Accordingly, the Board dismissed her appeal on 30 September 2015 and confirmed the Director’s Decision.
7. By a Notice of Further Decision dated 29 March 2018, the Director further rejected her non-refoulement claim on the basis of BOR2 risk[4].
The Leave Decision
8. On 23 August 2018, the applicant filed a Form 86 for leave to apply for judicial review against the Board’s Decision. No ground for seeking relief was stated in her Form 86 and in her supporting affirmation, she only stated that the Board’s Decision was unreasonable and unfair without providing any specific particulars or elaboration.
9. The applicant appeared in person at the hearing of the application before the Deputy Judge on 9 July 2020. An Indonesian interpreter was also present to provide language assistance.
10. By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review for the following reasons:
“15. Her application is late as the Board’s Decision is dated 30 September 2015 and she filed Form 86 on 23 August 2018. Under Order 53, rule 4(1) of the Rules of the High Court, the application has to be made promptly and in any event within 3 months from the date when the grounds of the application first arose unless the Court extends the time for her to make the application. This Court has to consider the merits of her application in order to determine whether time should be extended. AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
17. The applicant appeared before me. She complained that it was unfair to her as she was not given a hearing before the Board so that she might clarify to the Adjudicator.
18. I enquired what she would clarify as the Board had accepted her evidence on the facts of her case. Her appeal was rejected solely on the application of the law and Convention to the facts as she put to the immigration officer and the Board. She then said that she had nothing to clarify and was satisfied that it was fair to her even though there was no hearing for her.
19. 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.’
20. 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.
21. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
22. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to make this application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The EOT Decision
11. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.
12. On 22 March 2021, the applicant filed a summons and a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”) where she contended that she failed to receive any letter from the High Court and could not apply for appeal. By then, she was over six months late with her intended appeal.
13. By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal. The Deputy Judge considered that there was no evidence that the Board erred in its finding of the facts or the application of the law to her case and the applicant failed to say in what respect the Leave Decision was wrong in her affirmation. The Deputy Judge considered that there was no reasonable prospect of success in her intended appeal and declined to extend time for her intended appeal. Accordingly, the EOT Summons was dismissed.
The Present Application
14. By a summons dated 18 May 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court. In her summons and supporting affirmation of the same date, the applicant only stated that she was not satisfied with the rejection of her application for leave to apply for judicial review by the High Court and she wanted to appeal but her application for extension of time to appeal was rejected.
15. In her written submissions lodged on 2 July 2021, the applicant alleged that she had a life threat in her country and she would be killed by her enemy if she returned to her home country. She also alleged that the Board did not provide her with a lawyer or an interpreter and she had no capacity to tell her whole claim to the Board and the Board could not understand her problem.
Discussion
16. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif[2019] HKCA 299 at [13].
17. We consider the applicant’s delay of over six months as very substantial and the applicant failed to provide any cogent explanation for the delay. Although she claimed that she did not receive the letter from the Court, she failed to provide any specific particulars as to why that was the case or any evidence in support.
18. As such, as the applicant failed to provide any cogent explanation for her delay, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at [15]; Re Ansar Muhammad[2018] HKCA 227 at [8]; Re MA[2019] HKCA 1020 at [18].
19. In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration[2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib[2020] HKCA 408 at [28].
20. Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge. She only repeated the alleged factual basis of her non-refoulement claim which are all general and bare assertions without any specific particulars or evidence in support. They do not constitute viable grounds of appeal. The intended appeal must fail on this basis alone.
21. Further, it is well established that a CAT claimant or a claimant for BOR2 or BOR3 or persecution risks does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11]; Re Tariq Farhan[2018] HKCA 17 at [11]; and Re Lopchan Subash[2018] HKCA 37 at [13]. In any event, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair. We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim. Accordingly, there is no merit in her intended appeal.
22. For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the summons dated 18 May 2021 dismissed.
| (Thomas Au) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the 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.
[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.