RE FATIMA MRS

HCAL 1133/2017

[2018] HKCFI 2090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1133 OF 2017

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D E C I S I O N

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Introduction

1.  The Applicant seeks leave to appeal out of time against my order dated 2 August 2018 in her application for leave for judicial review in HCAL 1133/2017.

2.  The Applicant is a national of Bangladesh. She claimed she would be harmed or killed by some people of the Awami League (“AL”) because she witnessed those people killing her husband Mia. She and her husband supported the Bangladesh Nationalist Party (“BNP”). The Applicant also said she would be harmed or killed by Monir because she refused to have courtship with him. (Monir was one of those AL people that killed Mia.)

3.  The Applicant came to Hong Kong to work as domestic helper in September 2013. Her employment contract was terminated prematurely in February 2014. She overstayed in Hong Kong and surrendered to the police only in May 2014. She sought non-refoulement protection subsequently.

4.  In the ensuing two-tier screening process (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

5.  The Applicant filed an application for leave for judicial review on 30 June 2017 (the first application for leave for judicial review). The Applicant named the Board and the Director as respondents. That application was heard as HCAL 345/2017 on 26 September 2017 by Deputy High Court Judge Woodcock. The Judge dismissed her application on 1 December 2017.

6.  The Applicant did not appeal in HCAL 345/2017. Instead, she filed another application for leave for judicial review on 21 December 2017 (the second application for leave for judicial review). The Applicant named the Board as respondent and the Director as interested party.

7.  I heard the Applicant's second application for leave for judicial review on 6 June 2018. On 2 August 2018, I refused her application.

8.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal. The appeal period expired on 16 August 2018. She failed to do so.

9.  Seven days after the deadline, i.e. on 23 August 2018, the Applicant took out the present summons to seek leave to appeal out of time against my order made on 2 August 2018. In her affirmation, the Applicant alleged she did not receive the CALL-1 form and court order in HCAL 1133/2017 on time. 

10.  The Applicant had not produced any draft notice of appeal. In the summons, she complained my order made on 2 August 2018 was ‘unfair and unreasonable’.

11.  In [3] - [5] of her affirmation, the Applicant said: –

3.    However, I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for the leave for judicial review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the director and the adjudicator did not saw the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and summons as exhibit “A”.

4.    I believe that the merits of this ground of appeal constitute sufficient reason justification for the court to exercise its discretion in allowing this appeal put of me.

5.    Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my appeal/petition.

Hearing

12.  The present summons was listed for hearing on 7 September 2018.  The Applicant appeared in person. She confirmed all the grounds of her application were in the documents. She asked for extension of time to appeal but did not specify the period required. The Applicant asked me to give her the maximum time possible. However, she also said she would be satisfied with ‘more time’ or ‘less time’.

13.  I invited the Applicant to explain her grounds of appeal to show that she had a reasonable prospect of success in her intended appeal. She merely stated she could not go back to Bangladesh as her problems there were existing and she wanted to stay in Hong Kong.

14.  I stood down the matter for the Applicant to elaborate the grounds of her intended appeal in writing. The Applicant instructed the interpreter to write out a one-page document, where she repeated she did not receive the CALL-1 form and court order dated 2 August 2018 so she failed to appeal on time. She expressed a friend had helped her to find a lawyer to draft the current affidavit and application.

Discussion

15.  In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[5]

16.  On 2 August 2018, I refused the Applicant's application for leave for judicial review in HCAL1133/2017. The Applicant failed to file an appeal within 14 days. She said she did not receive the CALL-1 form and court order despite her address was correct. The Applicant alleged she got a copy of those from the court office only. [In the court file, there was indeed a receipt of payment of $18 (dated 20 August 2018) for such photocopying.]

17.  The Applicant's claim that she had not received the CALL-1 form and court order cannot be dismissed as fanciful. I am prepared to accept her explanation.

18.  The Applicant took out the present summons on 23 August 2018. That was seven days after the 14-day deadline for appeal filing. The delay was not a long one. The prejudice to the putative respondent would be small.

19.  However, I still have to consider the prospect of the Applicant's intended appeal which is a crucial assessment in an application to extend time.[6] Even though the Applicant can explain for the lateness, she still has to show there is a reasonable prospect of success of the intended appeal.

20.  When I refused the Applicant’s second application for leave for judicial review on 2 August 2018, I set out the reasons in [37] - [45] of the CALL-1 form as follows: –

Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

Renewed application for leave for judicial review

39. The Applicant had previously applied for leave for judicial review against the Board and the Director before Deputy High Court Judge Woodcock in HCAL 345/2017. She was heard by the Judge on 26 September 2017. On 1 December 2017, the Judge refused her application. The Judge found there was no merit in the Applicant’s complaints against the Board and there was no room for the Applicant to seek judicial review against the Director.[7]

40. There was no appeal against the Judge’s ruling in HCAL 345/2017.

41. I have reviewed the papers in HCAL 345/2017. In the affirmation in that case, the Applicant expressed her grounds of judicial review in a different manner. Basically, she complained the Director and the Adjudicator did not understand her fear; failed to conduct sufficient enquiry; failed to consider her claim properly and fairly; failed to explain their decisions clearly.

42. The Applicant now said there was a ‘lack of presentation’ in her earlier application for leave for judicial review in HCAL 345/2017. She gave no details. The Applicant had not made out a good reason for renewed application of judicial review.

43. The Applicant now worded her complaints differently. She even added an allegation that she was only served the appeal bundle shortly before the Board hearing. However, all these complaints could have been expressed or included in her previous application for judicial review in HCAL 354/2017. The Applicant had not done so. She could not do it now.

44. In the absence of a good reason for renewed application for leave for judicial review, the Applicant’s current action must be deemed as abuse of court process. Such unjustified application cannot be entertained. I need not and should not go on to consider the merits of her renewed application with respect to the decisions of the Director and the Adjudicator.

Conclusion

45.I refuse to grant the Applicant leave for her unjustified renewed application for leave for judicial review.

21.  It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that 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 and the prospect of an appeal is assessed by reference to his intended grounds of appeal.  The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.  It is also stated in Re Islam Rafiqul that “In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse 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.”[8]

23.  In the present case, in seeking leave to appeal out of time the Applicant has only put forward some vague allegations as grounds of her intended appeal (see paras 10-11 above). She fails to state any viable ground for the Court of Appeal (if there were an appeal) to consider that my order made on 2 August 2018 should be reversed. The Applicant fails to show she has any reasonable ground to argue on appeal and thus fails to show her intended appeal has a reasonable prospect of success.

Conclusion

24.  I would not grant extension of time to the Applicant to bring an appeal without any reasonable prospect of success. The summons filed on 23 August 2018 is therefore dismissed.