Re Akter Lipi

CACV 169/2019

[2019] HKCA 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 169 OF 2019

(ON APPEAL FROM HCAL NO. 425 of 2018)

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JUDGMENT

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

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2019 refusing her leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non- refoulement Claims Petition Office (“the Board”) dated 8 March 2018 disallowing the late filing of the applicant’s notice of appeal against the decision of the Director of Immigration (“the Director”) dated 3 January 2017 refusing her request to re-open her non-refoulement claim, which was treated as withdrawn upon her failure to return a completed Non-refoulement Claim Form (“NCF”) within the specified period.

2.This appeal was listed for hearing on 5 August 2019.  The applicant was directed to lodge two sets of skeleton argument by 8 July 2019 and also warned that if she failed to do so, she would be deemed to have abandoned her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by letter dated 2 May 2019 and the Notice of Hearing dated 18 June 2019.

3.The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing. 

4.In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. Therefore, we have processed this appeal on paper based on the available materials.

5.The applicant is a Bangladeshi national.  Between July and August 2016, she wrote to the Director to raise a non-refoulement claim.  On 30 September 2016, the applicant attended a briefing session given by the Immigration Department with the help of a Bengali interpreter.  She was advised on the non-refoulement claim screening procedure, the requirement for submitting a completed NCF by 28 October 2016. 

6.The applicant was initially represented by the Duty Lawyer Service (“DLS”) in respect of her non-refoulement claim.  On 28 October 2016, the DLS informed the Director they no longer had instruction to act for the applicant. 

7.By letter dated 3 November 2016, which was accompanied with a Bengali translation, the Director notified the applicant that as she had failed to return her NCF within the time prescribed, her claim was treated as withdrawn on 29 October 2016.  On 15 November 2016, the applicant made a written request to the Director to re-open her claim, but did not give reason for her failure to return the completed NCF.  By a letter dated 28 November 2016, the Director requested the applicant to provide further information and documentary evidence relating to her inability to return the completed NCF within the prescribed time limit.  There was no response from the applicant. 

8.By a Notice of Decision dated 3 January 2017, the Director refused the applicant’s request to re-open her non-refoulement claim.  The decision was sent by post on the same date to the applicant’s last reported correspondence address.   

9.The statutory time limit for the applicant to file an appeal to the Board against the Director’s decision was 14 days from the date of the Director’s decision[1]. However, the applicant did not file an appeal until 12 April 2017, by which time her appeal was three months late.  The applicant explained the late filing on the ground that she had changed her address and the Director’s decision was sent to her old address, and she was confused about who was acting for her.  However, she did not provide any particulars or documentary evidence in support. 

10.Pursuant to section 37ZT of the Immigration Ordinance, the Board was required to make a preliminary decision on paper whether to allow the late filing of the appeal.  By its decision dated 8 March 2018, the Board concluded the applicant failed to show any special circumstances pursuant to section 37ZT(3) of the Ordinance and disallowed the late filing of the applicant’s notice of appeal.

11.The applicant filed a Form 86 on 16 March 2018 seeking leave to apply for judicial review of the Board’s decision on the following grounds:

(1)  The Board failed to maintain high standard of fairness by not holding an oral hearing and to allow the applicant the opportunity to put forward her case.

(2)  The Board failed to apply the minimum standard of procedural fairness.

(3)  The Board failed to take into account the applicant was not legally represented and had insufficient legal knowledge.”    

12.At the applicant’s request, an oral hearing was held on 16 January 2019 to hear her leave application.  The applicant appeared in person in court with the assistance of a Bengali interpreter.  She told the Judge she had set out all her grounds in the documents filed with the court and she had nothing to add.  The Judge, having considered the applicant’s grounds for judicial review, concluded that her intended judicial review had no prospect of success and, accordingly, refused to grant leave to apply for judicial review. The Judge set out his reasons in [7] to [11] of the Form CALL-1 dated 29 March 2019, [2019] HKCFI 248:

“7.  Her first complaint of not being provided with an oral hearing to enable her to present her case clearly cannot stand on any ground as section 37ZT of the Ordinance, also cited by the Board in its decision, clearly provides that the Board shall decide on the late filing of notice of appeal as a preliminary decision without any hearing as follows:

‘(1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.’

8.  As for her complaint under ground (2) of the Board’s failure to act fairly but failed to provide any particulars or elaboration of her assertion. In its decision the Board gave its findings and reasons for refusing the applicant’s late filing of her Notice of Appeal as follows:

‘18.  The law provides that it is conclusively presumed that the Appellant had been served with the Notice of Decision as it was delivered to her known address.

19.  The Appellant’s explanation for late filing of her application is that she changed address and was confused about who was acting for her.

20.  The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance, and the need for this type of application to be conducted efficiently and at proportionate cost.

21.  The Board does not accept that the appellant would have been confused about who was acting for her, given the responsibilities the Duty Lawyer Service has. The Notice of Decision sets out that the DLS did not receive instructions from the Appellant and she has not adduced any evidence to support her assertions. The Appellant says that she changed address but it is her responsibility to inform the Director of Immigration of her whereabouts. I note that in the Appellant’s case she has not pursued her claim with any vigour and it is characterized by delay on her part. Her appeal is three months out of time and this is an extraordinary delay. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.’

9.  On the basis of these findings and in the circumstances of the case, the Board was clearly entitled to conclude that the applicant was solely to be blamed for her failure to properly and promptly inform the Director of her new address and that there were therefore no special circumstances to justify allowing the late filing of her appeal, as it has been repeatedly emphasized by the Court of Appeal that it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner, and that the consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; and Re Ram Ishver Dass [2019] HKCA 27.

10.  As for her complaint in ground (3) that the Board failed to take into account that she had no legal representation and did not advise her to complain, clearly this cannot be accepted as any valid ground against the Board’s decision, as the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.”

11.  Furthermore, the applicant was given legal representation from DLS in her application before the Director, but somehow for reason known to her but never disclosed, DLS was subsequently unable to obtain instructions from her, of which she put the blame on her own confusion about the process.  Clearly this cannot be relied on as any ground to challenge the Board’s decision.”

13.The applicant appealed the Judge’s decision by a notice of appeal filed on 9 April 2019.  The applicant stated in the notice of appeal that her life would be in danger in her home country, that she could not return home, and that she is a human and has the right to life.    

14.What was stated in the notice of appeal does not constitute viable grounds of appeal.  The focus of an appeal to this Court is the correctness of the Judge’s decision.  However, the applicant has failed to identify any error in the Judge’s decision or his reasons.  We have also reviewed the Judge’s decision and agree, for the reasons that he gave, that the grounds for judicial review are not reasonably arguable and the intended judicial review has no reasonable prospect of success.  There is no proper basis for this Court to interfere with the Judge’s decision. 

15.Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.