DAS SANTNA RANI v. TORTURE CLAIMS APPEAL BOARD

CAMP 502/2021

[2022] HKCA 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 502 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2308 OF 2018)

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J U D G M E N T

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

1.  On 11 May 2021, Deputy High Court Judge To (“the Judge”) refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  On 15 June 2021, the applicant filed a summons for an extension of time to appeal against that decision, as the 14-day period to file her appeal ended on 25 May 2021.  She was some 20 days late with her intended appeal.

3.  On 22 October 2021, the application was dismissed by Deputy High Court Judge Suffiad.

4.  On 5 November 2021, the applicant took out this renewed application in the Court of Appeal for leave to appeal out of time against the Judge’s decision of 11 May 2021. 

5.  The applicant is a national of Bangladesh and is 36 years old.  She came to Hong Kong to take up employment as a domestic helper on 31 December 2013 but her employment was prematurely terminated on 29 March 2014.  Thereafter, she did not return to Bangladesh and overstayed.  On 9 September 2015, she was arrested by the police and referred to the Immigration Department. 

6.  The applicant lodged a non-refoulement claim under the unified screening mechanism (“USM”) on 12 September 2015 on the basis that if she were to return to Bangladesh, she would be harmed or killed by the Awami League (“AL”) for refusing to join them.

The Director’s decisions

7.  By a Notice of Decision dated 20 April 2016, the Director rejected the applicant’s claim on torture risk^[1], BOR 3 risk^[2] and persecution risk^[3]. 

8.  By a Notice of Further Decision dated 19 April 2017, the Director rejected the applicant’s claim on BOR 2 risk^[4] after considering her letter dated 13 April 2017. 

The Board’s decision

9.  The applicant attended the hearing of her appeal against the Director’s decisions before the Board on 28 April 2017 and 25 May 2017.  The Board considered the applicant’s appeal based on all four applicable grounds.  The Board found that the applicant’s claim that she would be harmed or killed by the AL upon her return to Bangladesh because of her refusal to cease supporting the Bangladesh Nationalist Party (“BNP”) and to join AL to be implausible.  The Board determined that the applicant was only a basic member or supporter and not an office bearer of BNP and in terms of “opposition” to the AL, it was really just her vote for the BNP.  The Board also found the applicant’s claim that her husband was killed for refusing to join AL and that she was raped by an AL member but was able to flee as very highly implausible and not credible.

10.  The applicant’s oral evidence and documented accounts presented different versions, contradictions and inconsistencies, and her explanations for significant inconsistencies were unsatisfactory.  Hence the Board found her not a credible witness and concluded that she had fabricated her claims so as to create a basis upon which to apply for non-refoulement. 

11.  The Board acknowledged that Bangladesh as a country had instances of political violence both at the time of the 2014 parliamentary election as well as ongoing.  However, there would only be a remote risk and not a real risk for the applicant to face harm from AL supporters because she did not bear a credible political profile.

12.  The Board decided that the applicant had failed to establish her claim and dismissed the appeal on 19 October 2018.

The intended judicial review

13.  The applicant filed a Form 86 and a supporting affirmation on 23 October 2018 to seek leave to apply for judicial review against the decision of the Board.

14.  She put forward the following grounds for her intended challenge:

(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 Applicant’s appeal.

(3)  The Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness.

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

The Judge’s decision

15.  The applicant attended the hearing before the Judge.  The Judge considered that the applicant had failed to provide any particulars. She complained at the hearing that she had insufficient time to prepare for the hearing of the appeal, and that the majority of the documents in the appeal bundle were in English and she had no legal representation.

16.  The Judge held that Ground 1 was not a valid ground because the Board is bound to uphold the Director’s decisions if the applicant failed to satisfy the requirement for non-refoulement protection. 

17.  Under Ground 2, the Judge rightly referred to a number of Court of Appeal cases^[5] which held that the high standard of fairness required in proceedings involving a claimant of BOR 2 risk, BOR 3 risk or persecution risk does not entail that such claimant would have an absolute right to free legal representation at all stages of the proceedings.  The Judge took a global view of the circumstances and held that the applicant had the benefit of legal representation in presenting her case to the Director.  She also had the services of a qualified interpreter at the screening interview and at the oral hearing before the Board.  Therefore, there was no procedural irregularity in the proceedings before the Director and the Board. 

18.  The Judge held that the alleged procedural unfairness under Ground 3 were same as those under Ground 2.  Furthermore, under Ground 3, the applicant sought to overturn the Board’s findings of fact. The Judge concluded that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM and had observed a very high standard of fairness.  Hence, the Board committed no errors of law, procedural unfairness or irrationality that attracted judicial intervention.

19.  The Judge found that Ground 4 lacked particulars. In any event, the Board had fully considered the applicant’s case and given her opportunities to explain the contradictions and inconsistencies in her evidence.

20.  The Judge held that the intended grounds of appeal did not have a realistic prospect of success and accordingly dismissed her application on 11 May 2021.

Application for extension of time to appeal against Judge’s decision

21.  By a summons and a supporting affirmation both filed on 15 June 2021, the applicant sought an extension of time to appeal against the Judge’s decision refusing the leave application for judicial review. 

22.  The 14-day period for her to file her appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap 4A ended on 25 May 2021, hence she was some 20 days late with her intended appeal, which DHCJ Suffiad considered as not an insignificant delay. 

23.  Court records showed that the Judge’s decision was sent by post on 11 May 2021 to the applicant using her last reported address, which was the address as stated in her summons dated 15 June 2021.  Directions from the Court were sent on two more occasions to her last reported address but were both returned as undelivered post. 

24.  DHCJ Suffiad considered the prospect of the intended appeal, and noted that the applicant had not put forward any proper or valid draft or proposed grounds of appeal.  Nor did she provide any details of how the Judge had committed any errors in law or why the Judge’s decision was unfair or unreasonable. 

25.  On 22 October 2021, DHCJ Suffiad refused the application for extension of time to appeal against the Judge’s decision and dismissed the 15 June 2021 summons.

Grounds of intended appeal

26.  Pursuant to a summons and supporting affirmation both dated 5 November 2021, the applicant renewed her application to the Court of Appeal for extension of time to appeal the Judge’s decision of 11 May 2021 and the decision of DHCJ Suffiad of 22 October 2021. 

27.  The applicant’s grounds of appeal in her affirmation and written submissions dated 19 November 2021 may be summarised as follows:

(1)  The Court of First Instance judge failed to analyse the applicant’s claim properly and did not consider her summons for extension of time to appeal.

(2)  The applicant did not obtain on time the 11 May 2021 order refusing her leave application for judicial review.

(3)  The Judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director and the Board.

(4)  The Judge reviewed the case “lightly” when “high standards of fairness” are required.

(5)  The decision has a significant effect on the applicant’s claim.

(6)  The Judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the director and the Board because they failed to give reasons justifying their respective decisions.

(7)  The applicant has submitted all the necessary evidence.

(8)  The Board failed to give sufficient opportunity to the claimant to arrange relevant evidence for her claim as well as her appeal.

(9)  The applicant will face hardship if she returns to her home country and the Board significantly relied on sources which were not officially recognised or was simply hearsay. 

Legal Principles

28.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) any prejudice to the putative respondent if extension of time is granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134.

Analysis and disposition

Length of delay and reasons for delay

29.  The applicant was some 20 days late, which is not insignificant, when she filed the application for extension of time to appeal against the Judge’s decision. 

30.  The applicant asserted that she had not received the judgment on time.  No further explanation was provided.  The judgment sent by post to her last known address was returned undelivered. 

31.  It is the duty of an applicant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner^[6]; and the consequences of any delay arising from failure to do so will fall upon the applicant^[7].

32.  In the absence of satisfactory explanation for the not insignificant delay, the applicant must satisfy the court there is real prospect of success in the intended appeal before an extension of time would be granted: Re Ansar Muhammad [2018] HKCA 227.

Prospect of Success

33.  In assessing the merit of the intended appeal, the court would adopt the legal principles set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In our judgment, the intended appeal of the applicant has no prospect of success. 

34.  The general propositions and assertions in the applicant’s submissions are not valid grounds of appeal.

35.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong. 

36.  The applicant’s grounds are bare assertions. She has failed to provide any evidence, particulars or sufficient elaboration to demonstrate that the Judge was wrong in refusing her leave application.  She alleged that the Board had failed to give sufficient chance for her to arrange relevant evidence to support her non-refoulement claims as well as her appeal, but she has completely failed to adduce any evidence to support her claims in her previous leave application made to the Court of First Instance and her present application. 

37.  The Board had given a detailed analysis and adequate reasons for dismissing her appeal.  The applicant has failed to provide any evidence to refute the findings of the Board.

38.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to extend time to appeal against the decision of the Judge on 11 May 2021 and dismiss the summons filed on 5 November 2021.