RE SOREN SUME

CAMP 247/2020

[2021] HKCA 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 247 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1829 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung given on 13 July 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 1 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  She entered Hong Kong on 21 January 2014 to work as a foreign domestic helper.  Her first contract was terminated prematurely on 18 April 2014 and her second contract was terminated on 12 August 2014.  She overstayed and surrendered to the Immigration Department on 25 September 2014.  She lodged a non-refoulement claim on 18 November 2014. 

3.  The applicant’s claim was based on threats from her husband and her fear that she will be harmed by the Muslim population in Bangladesh because she is a Christian.  The details of the applicant’s claim have been summarised by the judge at [5] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 1 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 May 2018, the Board dismissed the appeal on 24 August 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [47] - [56] of the Board’s Decision, the Board did not accept that the applicant would face harm from the general Muslim population.  The Board also did not accept that the applicant faced any risk of harm from her husband [62].  At [67] and [75] of the Board’s Decision, the Board held that state protection is available in Bangladesh and there was nothing to suggest that state protection would not be available for the applicant.  The Board further held at [84] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 4 September 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application filed on 4 September 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [15] of the CALL-1 Form:

(1)     the Board failed to maintain high standard of fairness for not holding an oral hearing, allowing the applicant an opportunity to put forward her case;

(2)     the Board failed to act fairly;

(3)     the Board failed to take into consideration that she was not legally represented; and

(4)     the Board did not inform her that she could complain.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [16] to [21] of the CALL-1 Form:

“16. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.

17. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

19. Ground (1) is not true; ground (2) is only her opinion without any evidence or particulars in support of it; Ground (3) fails in light of the authority above and ground (4) is not a reason for her application.

20. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

21. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 18 September 2020, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ C P Pang on 9 December 2020.

11.  By a summons filed on 18 December 2020, the applicant renewed her application for an extension of time to appeal before this court.  In the summons she stated that:

“The Plaintiff would like to seek leave to appeal out of time due to the fact that he did not receive the sealed order, CALL-1 and Judgment within 14 days from 13 July 2020 due to the order being lost in post. The Plaintiff could only get the Order, Call-1 and Judgment after searching the court file.”

12.  In her affirmation of the same day filed in support of the application, the applicant deposed to the same matter raised in the summons.

13.  In her skeleton submissions dated 23 February 2021, the applicant referred to a number of authorities on high standard of fairness and Wednesbury unreasonableness without explaining their relevance.  She also referred to section 37ZT of the Immigration Ordinance, Cap 115 related to late filing of notice of appeal to the Board, again without explaining its relevance.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A.

15.  In this application, the applicant claimed that the court documents were lost in the post.  This explanation is inconsistent with her explanation given in the hearing before DHCJ C P Pang on 30 October 2020, namely that she was pregnant and could not walk the stairs to get the letter from the mail box.  No explanation for the inconsistency was given and we are not satisfied that the applicant was telling the truth in any of the explanations advanced by her.  We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.

16.  We nonetheless go on to consider the merits of the intended appeal.

17.  The applicant did not identify any error on the part of the judge and she has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

18.  The applicant advanced a number of grounds in the written submission, which are vague and do not engage with the reasoning by the judge.  We are not satisfied that those grounds have any merit.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 18 December 2020 is dismissed accordingly.

20.  We are also 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.