RUNA RAHIMA AKTER v. TORTURE CLAIMS APPEAL BOARD

CAMP 359/2021

[2022] HKCA 262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 359 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1232 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1.  On 30 April 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.  On 19 August 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal^[2].

3.  On 26 August 2021, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons should be treated as a renewed application for leave to appeal out of time against the decision dated 30 April 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.  The applicant is a national of Bangladesh.  She is 34 years old.  She entered Hong Kong on 21 January 2014 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 30 June 2014 and she overstayed.  She was arrested on 12 August 2014 and raised a non-refoulement claim on 20 September 2014.  Her claim was that if she returned to Bangladesh, she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) due to their dispute with her deceased husband, who was a supporter of the Bangladesh Nationalist Party (“BNP”) and who was killed due to conflicts with certain local AL supporters regarding monetary issues, as well as his refusal of their invitation for him to leave the BNP.  Her home was set on fire and she suspected that certain AL supporters were behind this and was of the view that it was no longer safe for her to remain in Bangladesh.

The Director’s decisions and the Board’s decisions

6.  By a Notice of Decision dated 4 August 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4], and persecution risk^[5].

7.  On 13 August 2015, the applicant appealed against the Director’s decision to the Board.  No oral hearing was conducted and the Board considered the appeal in her absence on paper.  Having considered all the documents and materials placed before it, the adjudicator was satisfied that the appeal could be determined without an oral hearing, as there was no dispute as to facts or law which would require an oral hearing to resolve.

8.  The Board found no evidence to support the applicant’s claim under any of the applicable grounds.  In any event, in the absence of any official involvement, state or police protection would be available upon her return to Bangladesh.  Internal relocation was also reasonably available for her to move safely to other areas away from her home district without any risk of being located by the said local AL supporters.  Since her claim for non-refoulement protection failed on all applicable grounds, the Board dismissed the appeal on 30 March 2016. 

9.  Upon the dismissal of her appeal, the applicant wrote to the Board on 22 November 2016 mentioning that her life was still in danger in Bangladesh.  On 7 December 2016, the Director invited the applicant to submit any additional facts which may be relevant to her non-refoulement claim.  The applicant sent a further letter to the Director in response dated 13 December 2016.  By a Notice of Further Decision dated  4 January 2017, the Director rejected the applicant’s claim on BOR 2 risk^[6].

10.  On 15 February 2017, the applicant appealed against the Director’s decision in the Notice of Further Decision to the Board.  The same adjudicator decided to hold an oral hearing on this occasion, in order to maintain a high standard of fairness.  The applicant attended the hearing on 11 April 2018 and gave evidence and made submissions.  On 22 June 2018, her appeal was dismissed by the Board, which confirmed the further decision of the Director.

The intended judicial review

11.  The applicant filed a Form 86 and an affirmation on 29 June 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  She gave no grounds in support of her application in her affirmation and no oral hearing was requested. 

The judge’s decision

12.  The judge simply found no room for engaging the BOR 2 ground, and did not find the applicant’s intended judicial review to be reasonably arguable or to have any prospect of success.  Applying the case of TK v Jenkins & Anor [2013] 1 HKC 526, the judge agreed that internal relocation was not unreasonable or unsafe for the applicant once she returns to Bangladesh.

13.  The judge also found no error of law or procedural unfairness in either the decisions of the Director or the Board, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Leave was thus refused and the application was dismissed on 30 April 2021. 

Grounds of intended appeal

14.  In her affirmation for this application, the applicant claims she did not receive any letter from the High Court and so she failed to appeal in time.

15.  Her written submissions reiterated that she had a political problem and that her life was in danger.  She also claimed that the adjudicator made procedural errors, but did not spell out what they are. 

Analysis and disposition

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

17.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 30 April 2021.  The applicant took out a summons for leave to appeal out of time at the court below on 18 May 2021.  She was late by 4 days. 

18.  The applicant explained in her supporting affirmation filed with the court below that she was late because she did not receive the judge’s decision from court in time. 

19.  Even if we are minded to accept her explanation in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

20.  The general principles regarding an appeal in a non‑refoulement case 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 only examine the decision of the judge in light of the grounds advanced by the applicant.  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.  In the present application, the applicant has not put forward any ground to reverse the judge’s decision.  The judge has considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny and found no reasonably arguable grounds to challenge their decisions by judicial review.  The applicant failed to show that she has any prospect of success in her intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision of 30 April 2021 and dismiss the summons filed on 26 August 2021.

[1] [2020] HKCFI 1185

[2] [2021] HKCFI 2343

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10