CAMP 73 /2022
[2022] HKCA 1205
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 73 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2276 OF 2018)
________________________
| BETWEEN | | |
| | Anu Gurung | Applicant |
| | and | |
| | Torture Claims Appeal Board / Non‑refoulement Claims Petition Office | Putative Respondent |
| | and | |
| | Director of Immigration | Putative Interested Party |
________________________
| Before: | Hon Kwan VP and Yuen JA in Court |
| Date of Written Submissions: | 12 April 2022 |
| Date of Judgment: | 26 August 2022 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 30 March 2021, Deputy High Court Judge P Li refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.[1]
2. On 24 February 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the judge was of the view there is no merit in the intended appeal[2].
3. On 3 March 2022, the applicant filed the present summons with the Court of Appeal, which appears to be seeking an extension of time for leave to appeal.[3] In light of the decision in Tang Chai On v TangSingKi [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 30 March 2021.
4. Having considered the materials filed by the applicant, this court considers that the present application for extension of time to appeal should be determined on paper without an oral hearing pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap 4A.
5. The applicant is a national of India and is 48 years old. She came to Hong Kong on 12 November 2013 to work as domestic helper. Her contract was terminated on 28 February 2017 and she was arrested for overstaying on 3 March 2017 (see Footnote 1, [2022] HKCFI 507). She lodged her claim for non-refoulement protection on 29 December 2017 on the basis that she would be harmed or killed by members of a “revolving fund” group due to a financial dispute. As related by the judge, in 2012 she was the keeper of this fund and all 16 members contributed to the fund each month, one of them would get the fund by drawing lots. A member ran away with the money and other 14 members blamed her. She was once kidnapped to a jungle and suspected that the kidnappers were sent by the fund group. She hid at various places in India and Nepal for one and a half years before she came to Hong Kong in November 2013.
6. By a Notice of Decision dated 10 May 2018, the Director rejected the applicant’s claim on torture risk[4], BOR 3 risk[5], BOR 2 risk[6] and persecution risk[7].
7. The applicant appealed against the Director’s decision to the Board and a hearing was held on 17 August 2018. Upon considering all the evidence presented, the Board found there was no basis for the applicant’s claim for non-refoulement protection. In particular, the Board found it illogical and against common sense that the 14 members of the group threatened to kill her when the applicant was also a victim. Besides, there is no evidence that any of the 14 members was minded to carry out their threats. The threats, if made, were empty threats by telephone, as none of the members had confronted the applicant in person to threaten or harm her. In any event, the Board was of the view that the treatment received by the applicant before she left India did not fall within the meaning of “torture” under section 37U(1) of the Immigration Ordinance (Cap 115)[8]. In conclusion, the Board held there was no evidence that the applicant would suffer ill-treatment if she is sent back to India and that internal relocation is not unreasonable.
8. In light of its findings, the Board dismissed her appeal on 12 September 2018.
The judge’s decision
9. On 19 October 2018, the applicant applied for leave to seek judicial review against the Board’s decision. She did not supply any grounds in support of her application in Form 86 or in her affirmation. About two years later, the applicant sent a letter to the court on 9 November 2020 requesting more time to gather documents, stating that she was unable to submit further documents due to the pandemic in India[9]. Subsequently, she appeared before the judge at the hearing on 19 January 2021 and gave further explanation of the events in her claim[10].
10. As the applicant had been in Hong Kong since 2013, the judge was of the view that she had sufficient time to gather the relevant documents. He agreed with the Board that the factual basis of her claim is not credible. There is nothing to show that the Board had committed any error in the application of the law, made irrational findings, or that there was procedural unfairness in coming to its conclusions. Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 30 March 2021.
Grounds of intended appeal
11. In her summons, the applicant challenged the decision of the judge for the reasons summarised below:
(1) She did not receive the court documents in the post.
(2) She was not provided legal representation throughout these proceedings.
(3) She has limited English abilities.
12. In the applicant’s affirmation, she repeated her fear of returning to her own country.
13. In her written submissions, she gave a narrative of her background and procedural history of her non-refoulement claim. She challenged the judge’s decision of 24 February 2022 (refusing to extend time for her to appeal against his decision of 30 March 2021) contending that:
(1) he failed to consider the substantive merits of both her underlying judicial review application and of her appeal; and
(2) he failed to consider that his decision was in error in substantively determining her application for leave to seek judicial review.
14. In her written submissions[11], she claimed that four specific grounds for seeking judicial review “were submitted with [her] leave application on 19 October 2018”. She sought to elaborate on those four grounds in her submissions[12].
15. As we have pointed out above, in the Form 86 and supporting affirmation filed on 19 October 2018, no ground was advanced at all in support of her application to seek leave to apply for judicial review. The judge also pointed out in his decision of 30 March 2021 that in the supporting affirmation, she did not point out any specific error in the decision of the Board and she had not made specific complaint of any error in the decision of the Board[13]. The recent claim in her submissions in April 2022 that specific grounds were submitted in October 2018 is just not true.
Analysis and disposition
16. In considering whether to extend time for appealing against a decision refusing 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. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 30 March 2021. The applicant took out a summons in the court below on 8 November 2021. She was late for nearly 7 months.
18. She claimed that she did not receive the judge’s decision of 30 March 2021 and was informed by an Immigration Officer about the decision on 5 November 2021. According to the court record, the decision was sent to the address supplied by the Immigration Department as of 30 October 2020. It transpired that she had moved to a new address according to her summons filed in November 2021. She had not updated the address she provided to the court[14].
19. In refusing to extend time to appeal, the judge took the view that the applicant must bear the consequences for failing to update the court of her new address and expressed grave doubt for the delay. We agree with the judge and find her delay of 7 months inexcusable. We have reservations about the contentions in her submissions that she had checked at the old address every few days after she had moved and that she had updated her address with the Immigration Department.
20. As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong YaumateiFerry Co Ltd [2001] 1 HKC 125.
21. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
22. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.
23. In the present application, the applicant has raised new contentions for the first time in her written submissions. These new grounds will not be entertained by the Court of Appeal as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.[15]
24. As for the applicant’s complaint that she has not been provided legal representation, an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceeding (Re Paswan Shibu Lal[2018] HKCA 249 at §21). Besides, interpreter services were provided at hearings at every stage in the proceedings. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she may desire (Re Gurung Sagar[2019] HKCA 658). Lastly, the applicant’s complaint of not receiving court documents is not accepted as the Court of Appeal has repeatedly stated that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15).
25. In any event, the applicant has failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
26. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 30 March 2021 and dismiss the summons filed on 3 March 2022.
(Susan Kwan)
Vice President | (Maria Yuen)
Justice of Appeal |
The Applicant, acting in person
[1] [2021] HKCFI 829
[2] [2022] HKCFI 507
[3] The summons sought “extension of time to extend the period for making the application for leave to apply for Judicial Review to the Court of Appeal.”
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] 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.
[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[7] 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.
[8] torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—
(a) for such purposes as—
(i) obtaining from that person or a third person information or a confession;
(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or
(iii) intimidating or coercing that person or a third person; or
(b) for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions.
[9] [2021] HKCFI 829 at §15
[10] [2021] HKCFI 829 at §16
[11] At §12
[12] At §§13 to 19
[13] [2021] HKCFI 829, at §§14 and 18
[14] [2022] HKCFI 507 at §§8, 9
[15] Re Qadir Sher[2018] HKCA 160 at §11