KHATUN MST ANJUARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 229/2023, [2023] HKCA 942

On An Intended Appeal From [2022] HKCFI 3177 &

[2023] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 229 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 392 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 15 June 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 14 October 2022 (“the Order”) refusing to grant her leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 February 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh. She last arrived in Hong Kong on 28 August 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 August 2017 or within 14 days of its termination, whichever was the earlier. The Applicant’s employment was prematurely terminated on 24 August 2016. She did not depart and overstayed illegally, and was arrested by the Police on 9 November 2016. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh, she would be harmed or killed by a local leader named Zabed of the student wing of a political party known as Awami League (“AL”) due to certain disputes over their relationship. Details of the Applicant’s claim have been summarised by the Judge at §§1-13 of the CALL-1 Form.

5.  By a Notice of Decision dated 21 February 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 21 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §17 of the CALL-1 Form:

“In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence in particularly as to her very superficial knowledge of BNP, her implausible account of how she came to be appointed the chairperson of JCD in her university, and the inexplicable lack of documentary evidence as to other core aspects of her claim such as the birth of her son or the death of her uncle and aunt without logical explanation given that she was legally represented during her screening process before the Director with sufficient time to obtain such evidence in support of her claim that it did not consider her to be a credible witness or that she had provided a truth account of the events that led to her departure of Bangladesh, and concluded that she does not face a real chance of harm now or in the reasonable foreseeable future from Zabed or anyone else upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.”

7.  On 12 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86 or in her supporting affirmation filed on the same date.

THE JUDGE’S DECISION

8.  On 14 October 2022, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[18] On 12 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached copies of the decision and other documents from her hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

…

[20] In the Applicant’s case, the Board rejected her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 122 of its decision with the benefit of hearing her in her oral evidence and her answers raised of her claim during her appeal hearing, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, and given the detailed and correct findings by the Board against the credibility of her claim, I do not find any reasonably arguable basis to challenge those findings of the Board.

[21] Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by eth Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins and Anor [2013] 1 HKC 526.

[22] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.  On 7 February 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 8 June 2023, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.  By a summons taken out on 15 June 2023 in the Court of Appeal, the Applicant applied for an extension of time to appeal against the Order.

11.  In her written submissions dated 27 June 2023, the Applicant alleges, inter alia, that the Judge was wrong as a matter of law for not having applied the “principle of irrationality”, the “[h]igh standards of fairness”, and the “principle of procedural unfairness”, and also failed to scrutinise the Applicant’s application for extension of time to appeal. She alleges that the Adjudicator failed to give her a sufficient chance to arrange relevant evidence to support her non-refoulement claim. She also reiterates that her life will be threatened if she returns to her home country.

DISCUSSION

12.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant’s complaints in her written submissions are all general allegations without particulars, and cannot constitute valid grounds of appeal. The Applicant has failed to raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 15 June 2023 is dismissed.