Re Gurung Minu

CAMP 75/2019

[2019] HKCA 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1430 OF 2018)

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Before: Hon Barma and Au JJA in Court

Date of Written Submissions: 22 May 2019

Date of Judgment: 20 December 2019

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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):

Introduction

1.By a decision as set out in Form CALL-1 dated 8 March 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 552, Deputy High Court Judge KW Lung (“the Deputy Judge”) refused to grant extension of time for the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) dated 22 February 2017 (“the Board’s First Decision”) and 2 March 2018 (“the Board’s Second Decision”).  The Deputy Judge also dismissed the applicant’s application for leave to apply for judicial review against the decisions of the Director of Immigration (“the Director”) dated 15 May 2015 (“the Director’s First Decision”) and 30 March 2017 (“the Director’s Second Decision”).

2.The Board’s First Decision and the Board’s Second Decisions will be referred to collectively as “the Board’s Decisions”.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.The applicant issued a summons on 22 March 2019 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision to the Court of Appeal.  On 18 April 2019, the Deputy Judge dismissed her application.

4.The applicant now renews the application to this Court by way of a summons dated 3 May 2019 (“the Summons”) accompanying a supporting affirmation filed on the same date.  Pursuant to the directions of the Registrar of Civil Appeal given on 6 May 2019, the applicant lodged her written submissions on 22 May 2019.  Having considered the Summons and the applicant’s written submissions, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  We now hand down our judgment.

Background

5.The applicant is a national of Nepal.  She entered Hong Kong on 26 May 2013 and was permitted to stay as a visitor until 31 May 2013.  She overstayed and was arrested by the police on 5 February 2014.  She lodged a non-refoulement claim on 7 February 2014.

6.The details of the applicant’s claim and her personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 2 - 3 of the Board’s First Decision.

7.Briefly stated, the applicant claimed that if she were to return to Nepal, she would be harmed or killed by the Maoists in her home village because she refused to join them. The applicant claimed that members of the Maoists had started recruiting her when she was 15 years old in 2003.  They used violence to force her out of her house but did not succeed at that time.  In 2012, she was again visited by members of the Maoists.  She told them she needed a week to consider whether to join them and subsequently she fled from her home village and left for Hong Kong on 26 May 2013.

The Director’s Decisions and The Board’s Decisions

8.By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The Director’s Second Decision assessed the BOR 2 risk[4].

9.The applicant first appealed the Director’s First Decision to the Board.  After a hearing on 9 August 2016, by the Board’s First Decision, the Board dismissed her appeal.  The Board found that there was no involvement from the state agent and the applicant was not and would not be under real risk of harm by the Maoists (paragraphs 7 - 12 of the Board’s First Decision).  It further found that internal relocation and state protection were available to the applicant (paragraphs 13 - 23 of the Board’s First Decision).  On a separate and independent ground, the Board also dismissed her appeal because of the applicant’s lack of credibility (paragraphs 29 - 32 of the Board’s First Decision).

10.On 2 March 2018, by the Board’s Second Decision, the Board also dismissed the applicant’s appeal against the Director’s Second Decision.  It disposed of the application without an oral hearing because the applicant failed to provide any new or additional evidence to support her BOR 2 risk claim.  After considering the documents available, the Board dismissed the applicant’s appeal for the reasons stated in the Board’s First Decision.

The Deputy Judge’s Decision

11.On 20 July 2018, the applicant filed her Form 86 for leave to apply for judicial review against both the Director’s Decisions and the Board’s Decisions.  Although the applicant failed to seek extension of time for her judicial review against the Board’s Decisions, the Deputy Judge took into account the circumstance that the applicant acted in person and proceeded to consider whether there were reasonable prospects of success in the intended grounds for review.

12.The grounds for review were summarized by the Deputy Judge at paragraph 13 of the Deputy Judge’s Decision:

“13. In her affirmation in support of her application, the applicant set out the reasons in support of her application below:

(1) she did not have legal representation for the appeal to the Board;

(2) BOR 2 risk was determined without any legal representation;

(3) she did not have legal assistance for this application; and

(4) the Board’s Decision and Further Decision were not translated for her.”

13.After hearing the applicant and considering the evidence before him, the Deputy Judge dismissed the application for leave to judicially review the Director’s Decisions and the Boards’ Decisions and refused to grant the extension of time to the application to apply for judicial review against the Board’s Decisions. He set out his reasons at paragraphs 14 - 26 of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decisions

14. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

15. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

16. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions

17. Under Order 53, rule 4(1) RHC, the applicant has to take out her application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

18. The applicant is out of time for making her application for leave for judicial review of the Board’s Decision (dated 22 February 2017) or the Board’s Further Decision (dated 2 March 2018). In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, her application cannot proceed without this Court granting her an extension of time. See §28.

19. The applicant has not made an application for extension of time though she had admitted in her affirmation that she was late in making this application. Nor had she given any good reason for this Court’s consideration.

20. The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

21. This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

22. The applicant appeared before me. She confirmed that she had no complaint against the Adjudicator and she considered that the appeal hearing was a fair hearing. She was free to give all her facts to the Adjudicator.

23. The applicant said that the Board’s Decisions was explained to her by her family. She had no problem with that. Ground (4) therefore fails.

24. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’ The applicant had already had legal representation when she first appeared before the Immigration officer for the screening.

25. Grounds (1) to (3) fail too.

26. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

Extension of time in the court below

14.Pursuant to paragraph (1) of the Deputy Judge’s directions as set out in the Form CALL-1, the applicant first sought leave before the Deputy Judge by way of a summons dated 22 March 2019.  By the decision handed down on 18 April 2019 [2019] HKCFI 956 (“the Leave Decision”), the Deputy Judge refused to grant leave to the applicant to appeal the Deputy Judge’s Decision.  He set out the reasons at paragraphs 8 - 10 of the Leave Decision:

“8.  In her affirmation, she had raised the following issues:

(1) she did not have legal assistance and she had not been screened for the BOR 2 risk;

(2) although her family had explained the Board’s Decision to her, that does not mean she fully understands it and it is not fair;

(3) there was no explanation why some of her friends obtained legal representation but she did not;

(4) she considers that her intended judicial review has a prospect of success as the court should take into account her vulnerability and fear of persecution if she were refouled; and

(5) the court had wrongly made the decision because she was not given the guidelines and opportunity to put forward her grounds for her appeal.

9.  Issue (1) had been dealt with in paragraph 24 of the Court’s Decision. Issue (2) is irrelevant because it is her own duty to obtain assistance to understand the Board’s Decision. She may obtain assistance from the Board, the Duty Lawyer Scheme, the Legal Aid Department or other sources that she trusts. She has not even identified which part(s) of the Board’s Decision she cannot understand. Issue (3) does not require any answer as she has not pointed out other cases she wished to rely upon. Each case must be considered on its own facts and merits. It is useless to speculate what happened to other cases. Issue (4) is only her opinion, which this Court did not accept. The reasons have been set out in the Court’s Decision. Issue (5) is likewise irrelevant as it is her opinion. She has not identified what guidelines or opportunity she meant. She had been given plenty of opportunity of putting forward her grounds for her appeal.

10.  In the circumstances, I dismiss her application for leave to appeal the Court’s Decision to the Court of Appeal. Her application has been dealt with by this Decision. It is unnecessary to hold a hearing for that purpose.”

Discussion

15.In the Summons, the applicant sought to set aside the Leave Decision and asked for leave to file Notice of Appeal to this court.  In her well-typed supporting affirmation, in summary, she complained that (a) she was deprived of the opportunity to understand the Deputy Judge’s Decision to make proper grounds of appeal and the Deputy Judge ignored her ground of lack of language assistance; (b) the Deputy Judge acted Wednesbury unreasonable by failing to take into account the applicant’s unique situations, such as being a non-refoulement claimant who lacked language assistance; and (3) the Deputy Judge failed to consider the applicant’s lack of legal representation whilst others obtained legal representation for BOR 2 as an automatic right.

16.In her written submissions dated 22 May 2019, she repeated her complaints in her supporting affirmation verbatim.

17.We agree with the Deputy Judge that this application is devoid of merits.

18.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

19.An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

20.The applicant’s grounds of appeal stated in her supporting affirmation and written submissions were essentially the ones advanced and refused by the Deputy Judge in the Deputy Judge’s Decision and the Leave Decision as quoted above.

21.In particular, the lack of legal representation was dealt with by the Deputy Judge at paragraph 24 of the Deputy Judge’s Decision.  We find no errors in the Deputy Judge’s Decision.  Further, as to the lack of language assistance, we note that the legal documents from the applicant were all well-typed and well-formatted English documents.  It is clear that either she is reasonably proficient in English or has access to both legal and language assistance[5]. Thus, we agree with the Deputy Judge that the grounds set out in the affirmation in support of the applications for leave to apply for judicial review were hopelessly without merit.

22.As mentioned above, the Court of Appeal is not the venue for the applicant to reargue the grounds that she failed on before the Deputy Judge.  Those are not viable grounds to challenge the Deputy Judge’s Decision.

23.In any event, after our review of the materials placed before the Deputy Judge, we agree with the Deputy Judge’s Decision that there is simply no reasonable prospect of success in the applicant’s judicial review application against the Board’s Decisions.

24.For the reasons set out above, we are of the view that the intended appeal is devoid of any arguable merits and doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  In the premises, this Court would not grant leave to appeal and the Summons is dismissed accordingly.

25.Given that the application is without any merits, we further make an order pursuant to Order 59, rule 2A(8) of the Rules of the High Court that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person