RE KAKOLI MAHMUDA HASNAT

CAMP 78/2017

[2018] HKCA 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 236 OF 2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for an extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 1 December 2017 refusing leave to the applicant to apply for judicial review. The applicant is a Bangladeshi national who arrived in Hong Kong on 9 April 2014 as a foreign domestic helper. Her contract was terminated on 18 July 2014 and she had overstayed since 2 August 2014. She was arrested on 10 November 2015 and she lodged a non-refoulement claim on 22 November 2015. Her claim is based on the threat from a Bangladeshi man who allegedly assaulted her sexually continuously for a long period of time between 2010 and 2012. She did not make any report to the police or other authority in Bangladesh. This man was said to be politically connected.

2.  The Director decided against the claims on 6 April 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 16 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 7 April 2017, the Board dismissed the appeal on 15 May 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Board Decision.  The Form 86 filed by the applicant on 25 May 2017 did not give any ground for judicial review.  In her affirmation of 25 May 2017, she relied on the following grounds,

(a)  The Board failed to carry out sufficient research into the Country of Origin Information (COI);

(b)  The Board cherry-picked COI information;

(c)  The Board failed to evaluate and make a finding of fact as to the existence in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights;

(d)  The Board failed to assess whether state protection existed and misdirected itself as to the meaning of state protection;

(e)  The Board Decision was unreasonable;

(f)  Failure to call for psychological and psychiatric evaluation and reports at the screening stage and in the appeal to the Board;

(g)  The Board applied the incorrect standard of proof;

(h)  Failures at first instance by the assigned duty lawyer resulted in a lack of legal representation;

(i)  The applicant was not given sufficient time to prepare for her appeal to the Board and the appeal bundle was in English.

5.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [15] to [22] of the CALL-1 Form:

“ 15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. She analysed the material, claim and evidence carefully. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. The adjudicator made proper reference to recent material he relied on and referred to in the hearing bundle. He stated the source and its relevance. The material covered the applicant’s concerns as well as material supporting State protection. The applicant supplies no particulars of COI material the adjudicator failed to consider. These grounds are not arguable.

18. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. The adjudicator did consider whether she had to evaluate this and she found she did not. This must be correct because there was no police report and no evidence the State was involved in this case. There was no evidence any political party was involved despite bare allegations Abu had connections to the AL. This ground has no merits.

19. The applicant complains she answered all questions honestly during the appeal hearing and is aggrieved her credibility was found questionable. This paragraph in the affirmation must be referring to a different hearing (this is a “proforma” affirmation I see often) because the applicant in this appeal/petition elected not to answer questions. This complaint is wrong and misleading.

20. The applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her. The record shows what she adopted as evidence and what she would agree as evidence. She made an election not to give evidence. There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 1 December 2017.

7.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 18 December 2017, she applied for an extension of time to appeal.  Her application was supported by an affirmation dated 18 December 2017.  In the affirmation, she said she did not understand English.  There was no one to help her understand the CALL-1 form and sealed order.  The applicant did not include any draft notice of appeal in her affirmation. 

8.  On 20 December 2017, the Registrar of Civil Appeals directed that the applicant should lodge 2 sets of written submissions within 14 days after receipt of the directions.  The applicant did not submit any written submissions. 

9.  Instead on 5 January 2018, the Department of Justice received a postal package from the applicant.  The package contained the Non-refoulement Claim Form and other non-English documents.  There was no letter explaining the purpose of the package.  The addressee was Clerk to the Registrar.  The Department of Justice forwarded the package to Court on 10 January 2018.

10.  The documents in the postal package appear to be materials placed by the applicant before the Director and the Board.  The applicant did not advance submissions on their relevance to the present application or the intended appeal. 

11.  On 19 January 2018, the Registrar further directed that the applicant had to lodge written submissions with Court before 26 January 2018.  The applicant did not comply with this order. 

12.  Having studied the materials in the package, we do not find them to advance the applicant’s case further in the present application.

13.  The applicant failed to provide a satisfactory explanation for her delay in bringing this appeal.  Presumably, the applicant had assistance from someone who read and write English.  All the documents lodged by her are in English.  She did not give any account of the steps she had taken after she received the CALL-1 Form and the assistance given to her leading to her realization that she was out of time to lodge an appeal.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016.   

14.  On the facts of the present case, in particular the finding by the Board that the applicant’s story was “not credible” (§33 Board Decision), there is no basis for this Court to accept the assertion by the applicant that she will be subject to torture or any form of ill-treatment upon her return to Bangladesh.

15.  Having considered the case of the applicant in light of the materials before us, we found the finding by the Board on the lack of credibility of the applicant and the judge’s observations to be justified. We agree with the judge that leave to apply for judicial review should not be granted.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 18 December 2017 is dismissed accordingly.

16.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.