RAI SAMJHANA v. IMMIGRATION TRIBUNAL

HCAL 1168/2023

[2023] HKCFI 2654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By my Decision dated 21 August 2023 [2023] HKCFI 2158, I dismissed on paper the Applicant’s application for leave to apply for judicial review seeking to challenge the Immigration Tribunal’s dismissal of her appeal against the making of a Removal Order against her. The Tribunal had dismissed the appeal by a Section 53C Notice, without a hearing.

2.  Essentially, the Applicant’s only complaint was that the decision of the Tribunal was “unfair and unreasonable”, but without any explanation as to why that might be so.

3.  I dismissed the Applicant’s application both because (1) she had failed to identify any grounds that she might say were reasonably arguable and sufficient to justify the grant of leave to apply for judicial review, and (2) in any event, I could not see any reasonably arguable public law grounds of review.

4.  Now, by summons dated 11 September 2023, the Applicant applies for leave to appeal, out of time. The application is made 7 days out of time, and the affirmation in support of the application merely states that the Applicant considers my Decision to be “unfair and unreasonable”, though again without identifying why, and also without any attempt to explain the delay.

5.  At the hearing, the Applicant has appeared in person with the benefit of a Nepali/English interpreter.

6.  This is my Decision on the application for leave to appeal.

B.  Background

7.  The following matters suffice by way of background – fuller detail having been canvassed in my earlier Decision.

8.  The Applicant is a Nepalese national who originally came to Hong Kong for employment as a domestic helper. She was last permitted to remain until 7 June 2004. However, she did not depart, and she has been overstaying in Hong Kong since 8 June 2004.

9.  She surrendered herself to the Immigration Department on 14 July 2021. The Applicant has offered no explanation for or description of what occurred in the intervening 17 years (though I note that she has brought her perhaps teenage daughter to Court today).

10.  On 7 March 2023, a Removal Order was issued against her pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). The Applicant appealed to the Immigration Tribunal, but her “Notice of Appeal Against Removal” set out matters really only relevant to a non-refoulement claim (“NRC”) – it being unclear whether or not the Applicant had actually made a NRC. The Tribunal dismissed her appeal without a hearing by a “Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C” dated 18 April 2023.

C.  The Decision

11.  As I pointed out in my Decision, no proposed grounds were set out in the Form 86, and in the supporting affirmation, the Applicant merely stated “I want to judicial review the refusal decision of the appeal of the immigration Tribunal. This decision is unfair and unreasonable”, but without explaining why that might be so.

12.  I held that to be in breach of RHC Order 53 rule 3(2)(a)(iii), which requires an applicant to set out her grounds of review in the Form 86. Saying that the Tribunal’s decision is “unfair and unreasonable” is but a bare assertion, and I held that the Order 53 requirement could not be met by inserting on the Form 86 a general allegation that the impugned decision is unfair and unreasonable, but without any further details whatsoever. The Applicant’s application, therefore, was liable to be dismissed on that basis alone.

13.  I also held that the documents provided by the Applicant did not disclose any argument concerning the reasonableness or fairness of the Section 53C Notice which might give rise to any arguable ground of review with a reasonable prospect of success. The Director plainly had the power to make the Removal Order against the Applicant, under section 19(1)(b) of the Ordinance. On the basis of her complaints as made to the Tribunal, there was nothing arguably unreasonable in the public law sense for the Tribunal to take the view that the Applicant’s appeal could be dismissed without a hearing.

D.  Applicable Principles

14.  The principles applicable on an application for leave to appeal out of time are settled. In short, the Court will take into consideration the length of the delay, the reasons offered for the delay, the merits of the proposed appeal, and the balance of potential prejudice to the respondent if leave to appeal were to be granted.

E.  This Case

15.  Again, the Applicant has failed in her application to identify any proposed grounds for which he seeks leave to appeal. Again, the Applicant has merely stated that she considers the Decision to be unfair and unreasonable, without identifying any specific alleged unfairness or unreasonableness.

16.  Nor has the Applicant sought to explain any part of the delay, even if it is not a very long delay in bringing application.

17.  At the hearing, the Applicant stated that she did not want to go back to Nepal at the moment, but wanted to stay in Hong Kong. She said it is not safe for her to go back to Nepal. I explained to her that whether or not she should go back to Nepal was not the question arising on this application. I explained to her the basis of my previous Decision, and identified the question to be dealt with by me on this application, and invited any submission she wish to make directed at that question. In response, the Applicant said that she just wanted to let the Court know mainly that it was not safe for her to go back to Nepal.

18.  For the Applicant’s benefit, I might usefully repeat the following matters:

(1)  The Applicant’s application for leave to apply for judicial review flowed from the making of the Removal Order against her.

(2)  That Removal Order was made under section 19(1)(b) of the Ordinance.

(3)  Under that section, the Director of Immigration had the power to make the Removal Order because the Applicant had contravened a condition of her stay (as her own surrender to the immigration authorities essentially accepted).

(4)  When the Applicant appealed to the Immigration Tribunal, the question for that Tribunal was whether there was a proper basis to interfere with the decision of the Director.

(5)  On the facts put forward to the Tribunal, it was open to the Tribunal reasonably to consider that it could dismiss the appeal without a hearing.

(6)  That is because the Applicant put forward facts which could not change the position that she was an illegal immigrant in Hong Kong, having overstayed beyond the permitted period.

(7)  As I pointed out in my Decision, the matters relied upon by the Applicant in the appeal to the Tribunal were really matters relevant to a NRC.

(8)  A person’s ability to assert and establish a NRC can occur notwithstanding the making of a Removal Order against that person.

(9)  In essence, a NRC seeks to establish a reason why the person should not be returned to their home country, notwithstanding a breach of immigration requirements in Hong Kong, and any order that the person be removed or deported from Hong Kong.

(10)  Those questions did not arise on the appeal to the Tribunal.

(11)  Nor did those questions arise in the application for leave to apply for judicial review, or on this application for leave to appeal out of time.

(12)  If those questions are to be dealt with, it would be by way of a different process.

19.  In the circumstances of a fairly short but unexplained delay, and with no merit in the proposed appeal where no proposed grounds of appeal are even identified, I see no purpose in granting additional time within which to seek leave to appeal.

F.  Result

20.  Therefore, the application is dismissed, with no order as to costs.

The applicant, acting in person

HCAL 1168/2023

[2023] HKCFI 2158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2023

________________________

________________________

________________________

D E C I S I O N

________________________

A. Introduction

1.  The Applicant is a Nepalese national who came to Hong Kong for employment as a domestic helper.  She arrived on 20 November 2003, and was permitted to remain until 20 November 2005 or two weeks after termination of contract, whichever was earlier.

2.  On 10 March 2004, her condition of stay was varied to visitor and she was last permitted to remain until 7 June 2004. However, she did not depart, and she has been overstaying in Hong Kong since 8 June 2004.

3.  She surrendered herself to the Immigration Department on 14 July 2021.

4.  On 7 March 2023, a Removal Order was issued against her pursuant to section 19(1)(b)  of the Immigration Ordinance Cap 115 (“Ordinance”).

5.  The Applicant appealed to the Immigration Tribunal by a “Notice of Appeal Against Removal” dated 24 March 2023.

6.  Her “Notice of Appeal Against Removal”, however, set out matters which resemble an appeal from a failed torture or non-refoulement claim.  She said:

(1)  The Immigration failed to consider the real risk of harm I face if I return to Nepal.  The fact that I have not faced any harm till date is because I have not returned to Nepal.

(2)  The Immigration have made a mere assumption that the harm I may face would be minimum level of severity.

(3)  The Immigration failed to realise that it is obvious that my creditor would cause no harm to my sister as it is me who borrowed the money from the creditor, not her.

(4)  The Immigration failed to appreciate the level of corruption that takes place in Nepal and the fact that with the amount of money and power my creditor has it is impossible for me to remain safe anywhere in Nepal.

(5)  I got married in Hong Kong on 3^rd January 2022 with a Hong Kong permanent resident and I have applied my Entry Dependent Visa which is actively under process with your esteemed Other Visas and Permits Section.

7.  The Tribunal dismissed her appeal without a hearing by a “Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C” dated 18 April 2023 (“Section 53C Notice”). Materially, the Section 53C Notice stated:

The Tribunal has examined your written notice of appeal and is satisfied that the factual matters on which you are seeking to rely are not matters which would entitle you to succeed in the appeal.  Accordingly, the appeal has been dismissed without a hearing.

8.  By a Form 86 filed on 11 July 2023, the Applicant sought leave to apply for judicial review so as to challenge the Tribunal’s Section 53C Notice.

9.  Having considered all the materials before the Court, I am of the view that this matter can appropriately be dealt with on paper.

10.  This is my Decision.

B.  No Merits in the Intended Review

11.  No proposed grounds are set out in the Form 86.

12.  In the supporting affirmation, the Applicant merely stated “I want to judicial review the refusal decision of the appeal of the immigration Tribunal.  This decision is unfair and unreasonable”, but without explaining why that might be so.

13.  Other than the Section 53C Notice and the Notice of Appeal Against Removal, she also exhibited to her supporting affirmation the original Removal Order annexing a “Summary of Facts and Reasons for Removal”, and her recognizance form.

14.  RHC Order 53 rule 3(2)(a)(iii)  requires an applicant to set out her grounds of review in the Form 86.  The reference in the supporting affirmation that the Tribunal’s decision is “unfair and unreasonable” is but a bare assertion with no attempt to substantiate it at all.  I do not think that the Order 53 requirement could be met by inserting on the Form 86 a general allegation that the impugned decision is unfair and unreasonable, but without any further details whatsoever.

15.  The duty falls on the applicant to make good her leave application by identifying some reasonably arguable grounds.  An applicant cannot simply make reference to a general phrase and then expect the Court to plough through the documents to come up with the necessary grounds for her.  This is not the function of the judicial review Court.

16.  The Applicant’s application is, therefore, liable to be dismissed on that basis alone.

17.  In any event, the documents provided by the Applicant to the Court do not seem to me to disclose any argument concerning the reasonableness or fairness of the Section 53C Notice which might give rise to any ground of review with a reasonable prospect of success.

18.  The Director plainly had such power to make the Removal Order under section 19(1)(b)  of the Ordinance. Section 19(1)(b)  authorises a removal order to be made against a person who has remained in Hong Kong without the permission of the Director when such permission is needed.  The Applicant is evidently such a person.

19.  The ultimate basis of her complaints as stated in the Notice of Appeal Against Removal was that she might face harm if she were to be returned to Nepal.  I am not told whether she has an on-going non-refoulement claim (“NRC”), the existence of which might have a bearing on the government’s decision not to execute a removal order by actually removing her, see for example section 37Z which prohibits the removal of a person who has an on-going torture claim from Hong Kong to a risk state.  But the intended subject of challenge is the Removal Order, not a decision to execute that order, and any NRC would be a separate matter.

20.  Therefore, I think there is nothing arguably unreasonable in the public law sense for the Tribunal to take the view that the Applicant’s appeal could be dismissed without a hearing.

C.  Result

21.  The application is dismissed, with no order as to costs.

The applicant, acting in person