RE AFROZ MST SUMI AND ANOTHER

CAMP 153/2023, [2024] HKCA 501

On Appeal from [2022] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 153 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2279 of 2018)

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JUDGMENT

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

Introduction

1.  This is the applicants’ renewed application for extension of time to appeal against the decision dated 20 July 2022[1] of Deputy High Court Judge To (“the Judge”) refusing their application for leave to apply for judicial review.

2.  The 1^st applicant has also filed an affirmation and lodged written submissions on 8 and 15 December 2023 on behalf of herself and the 2^nd applicant in support of the application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the summons and the affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicants’ intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 28 September 2018 dismissing their appeal against the decisions of the Director of Immigration (“the Director”) dated 25 September 2017 refusing their non-refoulement claims.

Background

5.  The 1^st applicant is a national of Bangladesh. The 2^nd applicant is her daughter aged 7 years old who was born in Hong Kong. The 1^st applicant first entered Hong Kong on 30 November 2015 to work as a foreign domestic worker. She overstayed in Hong Kong after her contract was prematurely terminated on 3 December 2015. She surrendered to the Immigration Department on 12 January 2016. On 31 March 2016, she lodged a claim for non-refoulement protection. She gave birth to the 2^nd applicant in Hong Kong on 7 November 2016 and subsequently lodged a claim for non-refoulement protection for her on 26 January 2017.

6.  Their claims, as advanced by the 1^st applicant, are based on their fear of being harmed by (1) the Bangladesh police from District Thakurgaon who are loyal to the Awami League party (“AL”); and (2) three distant uncles (“Uncles”) whom the 1^st applicant had borrowed money before her coming to Hong Kong and the loan remains unpaid. Details of their claims are set out in the Director’s decision at [8] and the Board’s decision at [39].

7.  The 1^st applicant has an elder daughter with her ex-husband in Bangladesh, who is now being taken care of by the 1^st applicant’s mother. The 1^st applicant had lost contact with her ex-husband since their divorce. In 2004, the 1^st applicant joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member. In February 2013, she took part in a protest against the death sentence passed on the leader of the Bangladesh Jamaat-e-Islami, during which she was involved in vandalising vehicles and blocking the roads. She claimed that ever since the protest, the police in Bangladesh had been pursuing her. As a result, she took refuge in her paternal uncle’s home in Tangail for two years, and then moved to stay in her grandfather’s home for about 1 to 2 weeks. In 2015, she decided to come to Hong Kong to work as a foreign domestic helper. She borrowed 200,000 BDT from her Uncles to pay the employment agency. Her Uncles threatened to hand her over to the police if she could not repay the loan. After three months of training, she came to Hong Kong to start employment. Unfortunately, upon a health check she was diagnosed with Hepatitis B and her employer terminated her contract immediately. As she became unemployed, she has defaulted on her Uncles’ loan.

The Director’s decision

8.  In accordance with the 1^st applicant’s request for joint assessment[2], the 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim. By a decision dated 25 September 2017, the Director rejected their claims having regard to the torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6] grounds.

The Board’s decision

9.  The applicants’ appeals to the Board were heard on 26 June 2018 and they acted in person. The 2^nd applicant’s attendance was excused due to her young age[7]. The Board considered her case as part and parcel of the 1^st applicant’s case. The 1^st applicant adopted the evidence in the hearing bundles and did not submit any further evidence. By its decision dated 28 September 2018, the Board dismissed the appeals.

10.  For reasons given at [41] of the decision, the Board found material inconsistencies and contradictions in the 1^st applicant’s assertions in relation to the loan from her Uncles, which significantly undermined the credibility of her case. Further, the Board found there was no or no reliable evidence to substantiate her claimed fear of the Bangladeshi police, which was based on pure speculation and bare assertions[8]. As the 1^st applicant did not deny having taken part in illegal activities during the protest in February 2013, the Board considered she was merely avoiding prosecution rather than persecution[9]. Further, having considered the Country of Origin Information (COI), while accepting there has been police corruption and abuse of power in Bangladesh, the Board noted the Bangladesh government has implemented programmes to improve the accountability, discipline and accessibility of the police. The Board further noted from the COI that the Bangladesh police does not appear to be intrinsically tied to the AL party. The Board found the 1^st applicant had no objective reason to be afraid of the police[10]. The Board also assessed that internal relocation to cities such as Dhaka or Chittagong are viable options[11]. The Board concluded that it has not been shown that the applicants are entitled to non-refoulement protection under any of the applicable grounds.

11.  The Board did not undertake a separate consideration or assessment of the 2^nd applicant’s claim, which was considered to be part and parcel of the 1^st applicant’s claim.

The Judge’s decision

12.  By a Form 86 filed on 19 October 2018, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision. They did not put forward any specific grounds for their intended challenge in the Form 86.

13.  The court did not receive any response to its letter dated 20 October 2020 inviting the applicants to provide information on their first language, contact number and the documents they wished to rely on in respect of their leave application. The letter has not been returned through the post. The 1^st applicant has never informed the court of any change of address. The Judge proceeded to deal with the application on paper.

14.  By his decision dated 20 July 2022, the Judge refused leave to apply for judicial review and dismissed the application. He gave his reasons at [25] to [27] of the Form CALL-1 as follows:

“25. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her and the 2^nd Applicant to return to their home country, which, in effect, is a challenge of the Board’s finding of fact that they would not face any real harm or risk if returned to Pakistan[12].

26. The 2^nd Applicant was born in Hong Kong, now five years of age. She had not been subjected to any ill-treatment as that allegedly suffered by the 1^st Applicant. The 1^st Applicant had not adduced any evidence or advanced any argument that the 2^nd Applicant would face any real risk of harm other than collateral risk for being her daughter. Hence, the 2^nd Applicant’s claim is hinged on the 1^st Applicant’s.

27. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  Because of significant inconsistencies and contradictions in her evidence, the Board found the 1^st Applicant incredible and that she failed to prove the factual basis of their claim for protection.  In essence, the Board found that the risk of harm she and the 2^nd Applicant would face upon their return to Pakistan[13] is low.  It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicants had failed to discharge their burden of proving their fears and risks.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

Applications for extension of time

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicants to appeal the Judge’s order expired on 3 September 2022[14].

16.  By a summons filed on 28 February 2023 together with supporting affirmation, the applicants applied for an extension of time to appeal the Judge’s decision, on the basis that they were not aware of the procedure. The Judge proceeded to deal with the application on paper, and by his decision handed down on 24 March 2023[15] refused the application.

Our reasons for judgment

17.  On 13 April 2023, the 1^st applicant filed the present summons and supporting affirmation to make a renewed application on behalf of herself and the 2^nd applicant to this Court for extension of time to appeal, on grounds that they did not receive the Judge’s decision and the order in time and they had only obtained the documents from the Judiciary website with the help of a friend.

18.  In deciding whether to extent time for appealing against the Judge’s decision refusing them leave to apply for judicial review, the Court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

19.  Even if the Court does not accept that the applicant’s explanation for delay is reasonable, the Court would examine the merit of the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

20.  In assessing the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

21.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.  The applicants were more than five months late, which is a serious delay in the context of the statutory limit of 14-days. As pointed out by the Judge in the decision dated 24 March 2023, the Form CALL-1 was sent to the applicants’ last known address in Ki Lung Street and was not returned through undelivered post. Though the 1^st applicant had used another address in Nam Cheong Street in the summons before the Judge, the Judge noted that the court had never received any update on any change of address by the applicants. We agree with the Judge that the applicants have a duty to inform the court of any change in their address for service. We are not satisfied that the applicants have satisfactorily explained the serious delay. However, what is more important is the merits of the intended appeal, to which we now turn. 

23.  The applicants have not in their summons or in the affirmation provided any grounds in support of the intended appeal. In her written submissions, the 1^st applicant asked the court not to repatriate them back to Bangladesh given that her daughter has already settled down in Hong Kong and is enjoying her school and social life here.

24.  In our view, the applicants have not provided any viable grounds of appeal against the Judge’s decision, let alone grounds that have a real prospect of success.

25.  First, the 1^st applicant has not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board.  This being the case, the 1^st applicant’s intended appeal simply does not have any prospect of success.

26.  Second, in the case of the 2^nd applicant, we are mindful of the fact that she is a minor and has not been legally represented in the proceedings below and in this Court, as required by Order 80 rule 2 of the Rules of the High Court. We have examined the Board’s decision with particular regard to her case in light of the need to separately consider whether her claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to the lack of representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].

27.  The 2^nd applicant’s claim was founded entirely on the basis of the 1^st applicant’s claim, namely, risks of harm from the Bangladesh police and the Uncles for the outstanding loan. The Board found on the evidence that the claim of risks of harm and fear was not substantiated. The Board further found on the basis of the COI that the risk of harm was low and would be further reduced or addressed by internal relocation. In the circumstances of the present case, the rejection of the 1^st applicant’s claim means that there is no factual basis to support the 2^nd applicant’s claim.

28.  We also note that, both in the applications before the Judge and in the present application, the 1^st applicant has not pointed to any real risks of harm that the 2^nd applicant may separately face in Bangladesh. 

29.  We also do not see any material that may give rise to a concern that there are potential non-refoulement grounds relating specifically to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on her behalf before the Board.

30.  In the premises, we also find that the 2^nd applicant’s intended judicial review is not reasonably arguable and the Judge did not err in refusing her application for leave to apply for judicial review.

31.  Accordingly, we will treat the non-compliance with Order 80 rule 2 and the 2^nd applicant’s lack of legal representation as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.

32.  As the applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 13 April 2023.