RE KHATUN ARZINA

CAMP 495/2021

[2022] HKCA 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 495 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2798 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Renewed application for extension of time to appeal

1.  On 7 December 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 3 December 2018, which dismissed her appeal against the rejection of her non-refoulement claim by the Director of Immigration (the ‘Director’)  on 23 March 2017.  The application was brought within time.

2.  By his decision dated 31 May 2021 ([2021] HKCFI 1544)  (the ‘Leave Decision’), Deputy High Court Judge To (‘Judge To’)  refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the decision.  Being out of time for about two months, the applicant took out an application on 16 August 2021 before Deputy High Court Judge Suffiad (‘Judge Suffiad’)  requesting an extension of time to appeal.  Judge Suffiad on 29 October 2021 rejected the applicant’s application ([2021] HKCFI 3153)  (the ‘EOT Decision’).

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, Cap. 4A, the applicant may, within seven days after the Deputy Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 5 November 2021).  On 3 November 2021, the applicant made a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual Background

6.  Briefly stated, the applicant is a Bangladesh national.  She entered Hong Kong on 14 June 2013 to take up employment as a foreign domestic helper.  After her contract of employment was prematurely terminated in around mid-January 2014, she had overstayed until she was arrested by the police on 13 July 2016 for overstaying her permit for two and half years.

7.  On 16 July 2016, she raised a non-refoulement claim on the basis that she would be harmed or killed if she returned to Bangladesh, as she was targeted for political violence there.  She claimed that her family were all voters of the Bangladesh Nationalist Party (‘BNP’).  Her husband, who was an active leader of BNP in the village, was killed in 2009 by members of Awami League (‘AL’), BNP’s opponent party.  After that, she became an active leader of BNP in the village.  Between January and March 2010, the applicant was attacked by members of AL.

III.  The Director’s Decision

8.  By a decision dated 23 March 2017, the Director decided against the applicant’s non-refoulement claim.  The decision covered all four applicable grounds available under the Unified Screening Mechanism, namely : risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  being violated including right to life under Article 2 (‘BOR 2 Risk’)  and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

9.  The Director assessed that the level of risk of harm to the applicant if she were to return to Bangladesh was low.  In the absence of official involvement, the Director considered that state protection would be available to her.  Further, the Director found that internal relocation alternatives were available and reasonable.

IV.  The Board’s Decision

10.  The applicant appealed against the Director’s decision on 5 April 2017.  An oral hearing took place on 10 August 2018.  The Board dismissed her appeal on 3 December 2018, and the Director’s decision was affirmed.

11.  The Board found that the murder of the applicant’s husband had little relevance to her claim.  It doubted that if the AL people could kill anyone with impunity, they should have killed the applicant long before the rumours arose.  It found that the applicant left the village because of the rumours and her wish to find an independent life, but not because of the risk to her life.  Her claim of risk to life was not genuine and not substantial.

V.  The Leave Decision

12.  On 7 December 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, advancing four grounds :

1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

2)  The Board acted in a procedurally unfair manner in dealing with the appeal;

3)  The Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

4)  The Board failed to meet the greater care and duty owed to self-represented claimant.

13.  Judge To had considered each of these grounds in detail, and his decisions are set out in [15]-[26] of the Leave Decision.  He refused to grant leave to apply for judicial review, holding at [27] that :

‘ The Court therefore concluded that there was nothing that shows there was any errors of law or procedural unfairness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicant’s claim was not reasonabl[y] arguable. There was no realistic prospect of success. Accordingly, leave to apply for judicial review was refused.’

VI.  The EOT Decision

14.  On 16 August 2021, the applicant applied for an extension of time to appeal against the Leave Decision, as she was out of time for two months.  The applicant’s explanation was that she was in prison when the Leave Decision was made on 31 May 2021, and because of that she did not receive the decision.  She further explained that her prison sentence finished on 2 August 2021, but that she was detained in CIC and was not released until 11 August 2021.  She said that she did not receive the Leave Decision, nor was she informed of it by any prison officer, during the time when she was in prison and in CIC detention.

15.  In his EOT Decision dated 29 October 2021, Judge Suffiad noted that while the court record showed that the Leave Decision was sent on 31 May 2021 to the two reported addresses of the applicant, the earlier letters sent to the applicant at both of these addresses in May 2021 informing her of the dates of hearings had been returned to the Court as undelivered mail.  He found that : ‘if she was in prison, that may well explain why the earlier letters to the Applicant had been returned undelivered. It may also explain the delay’ (at [6]).

16.  Judge Suffiad then proceeded to consider the prospect of the appeal.  Having considered the document lodged by the applicant, Judge Suffiad dismissed the application for extension of time to appeal against the Leave Decision :

‘ 9. I am of the view that there is no merits here. The Applicant provided no reasonably arguable grounds for judicial review. An appeal against the refusal of leave for judicial review is not an occasion for the Applicant to regurgitate arguments already advanced and rejected. On appeal, the decision of the Court would only [be] reversed if it could be demonstrated that there were errors in law, or that the Court failed to take into account relevant matters or took into account irrelevant matters, or that the decision was otherwise plainly wrong.

10.  It is incumbent on the Applicant to point out with sufficient particularity the errors allegedly made by the Court in assessing the Board’s decision.  This she has not done.

11.  In the premises, it would be futile to extend time for what would appear to be a hopeless appeal.  I therefore decline the application for extension of time to appeal against the decision of the Court and dismiss the summons.’

VII.  The present application

17.  On 3 November 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

18.  In her affirmation of the same day, the applicant repeated that she was in prison when the Leave Decision was handed down.  She also claimed that Judge Suffiad ignored the reason and the ground in relation to her application for extension of time to appeal, and that the grounds upon which the Court relied to refuse her application are ‘unacceptable and unexplainable’.

19.  In her written submissions lodged on 17 November 2021, the applicant further challenged the Leave Decision on the basis that Judge To allegedly :

1)  reviewed the matter lightly notwithstanding the requirement of high standard of fairness in the determination of torture claims;

2)  did not apply the principle of irrationality to the decision made by the Director and the Board;

3)  did not apply the principle of procedural unfairness ‘to the decision of the director whereby the director and the adjudicator was [sic] required to give reasons justifying their decision’; and

4)  did not meet the greater care despite the applicant having severe problems in her home country and having submitted all the proofs.

20.  She also claimed that the adjudicator failed to give sufficient chance to her to arrange relevant evidence regarding her non-refoulement claims and her appeal, and that the Board significantly relied on source of news that was not officially recognised or was simply hearsay.

21.  Further, she said that Judge Suffiad did not scrutinise her application for extension of time to appeal.

22.  Lastly, the applicant repeated that if she returns to her home country, she will face hardship and will be killed by her enemy, who is still looking for her.  The police and the authorities will not help her because she is not a political leader of the ruling party or an influential person of the state.

VIII.  Analysis

23.  In considering whether to extend time for appeal, the Court will have regard to :

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

24.  As found by Judge Suffiad, the fact that she was in prison and then CIC until 11 August 2021 may explain her delay.  The focus is thus on the merits of the intended appeal.

25.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

26.  The applicant does not have any prospect of success in her intended appeal.

27.  First, Judge To had considered all relevant matters including the merits of the applicant’s case and set out his reasons in respect of each ground advanced by the applicant at [15]-[26] of the Leave Decision.

28.  Her complaints about the Board at [20] above had been considered by Judge To at [25] and [16]-[22] of the Leave Decision respectively.  We agree with Judge To’s decisions in this regard.  The applicant did not engage with Judge To’s reasons and did not identify any error on his part.  No valid ground of appeal arises from these complaints.

29.  There is no substance in her contention that Judge Suffiad did not scrutinise her application for extension of time to appeal ([0] above).  In this respect, we refer to the EOT Decision.  In any event, this does not constitute any ground of appeal against the Leave Decision.

30.  Lastly, the risk of the applicant returning to her home country ([0] above)  has been assessed by the Director and the Board, who are the primary decision-maker in a claim for non-refoulement. It is not the function of the Court in judicial review (let alone the Court of Appeal)  to re-assess the non-refoulement claim afresh.  The applicant did not identify any errors in the decision, and the regurgitation of her alleged circumstances does not give rise to any valid ground of appeal.

IX.  Disposition

31.  The applicant has failed to identify any proper grounds of appeal.  There is no merit and no prospect of success in her intended appeal against the Leave Decision.

32.  Accordingly, it would be futile to give an extension of time.  The applicant’s summons dated 3 November 2021 is dismissed.