RE PAYARA MST RABAYA AKTER

CAMP 153/2021

[2021] HKCA 1268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 153 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1111 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 22 October 2020 refusing her application for leave to apply for judicial review.

2.  The applicant had filed an affirmation, and also lodged a written submission on 24 June 2021, to support her application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 11 June 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 19 September 2017 rejecting her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 31.  She entered Hong Kong on 18 December 2014 to work as a domestic helper.  Her employment was terminated prematurely.  She overstayed after the permission to remain expired on 14 September 2015, and was arrested by the police on 10 October 2015.  She raised a non-refoulement claim on 17 October 2015. 

6.  The applicant’s claim is based on her fear of being harmed or killed by supporters of Awami League (“AL”) because she supported the Bangladesh Nationalist Party (“BNP”), and by other Muslims due to her conversion from Islam to Christianity.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 22 October 2020[1] at [3].  We will not repeat them.     

7.  By his decision dated 19 September 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 22 March 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 11 June 2018, the Board dismissed the appeal.  Primarily, the Board had doubts about the reliability of the applicant’s evidence and claim, having regard to a number of inconsistencies and irregularities in her evidence.  The Board did not accept she was a member of the BNP, or she had converted to Christianity, or she had been threatened, harmed or subjected to adverse treatment by reason of her political affiliation or religious beliefs or activities.  Having found the applicant’s claim to be incredible and a fabrication to create a case for protection, the Board concluded that her claim failed on all applicable grounds.

9.  On 15 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not put forward any grounds for seeking relief in either of the documents. 

10.  The Judge dismissed the application for leave to apply for judicial review.  He gave his reasons in [14] to [19] of the Form CALL-1, after citing the relevant legal principles, as follows: 

“14. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the vagueness, major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Form 86 and affirmation set out no grounds to demonstrate why the Board was unfair or unreasonable in the public law sense. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. The applicant had stopped her participation in BNP after her conversion to Christianity. There was no reason why she should still worry about her safety because of her involvement in BNP. Her conduct in Hong Kong by her delay in lodging the claim for protection after her contract was terminated indeed damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.

18. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately. There cannot be any criticism of the Board’s determination which is eminently reasonable.

19. 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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. 

12.  The applicant did not lodge an appeal within the 14 days’ time limit.  By a summons filed on 10 December 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 17 March 2021, and by his decision handed down on 8 April 2021[6] refused the application.  On 11 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.    

13.  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. 

14.  The applicant was late by over one month, which is not insubstantial.  She has not provided any explanation in the present application.  At the hearing before the judge, she had explained that she had moved home and did not get the Court’s decision in time.  The Judge did not accept the explanation because (i) it was at variance with what she stated in her summons filed in the action below, and (ii) it is, in any event, the duty of a litigant to inform the court of any change in address.  In the absence of satisfactory explanation for the delay, the applicant has to satisfy this Court that her intended appeal has a real prospect of success before we would extend the time for appeal. 

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  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. 

17.  In the present application, the applicant has not set out any proposed ground of appeal in her summons and supporting affirmation.  She merely stated that if she could not appeal, she would have to return home, which would be very dangerous to her life.

18.  In her written submission, the applicant stated that she came to Hong Kong to save herself from her enemies, who are the Awami League, the current Muslim Government, and the Muslim people who are angry at her for converting to Christianity. She asserted that she has no way of returning and her problem is real.       

19.  The matters put forward by the applicant do not amount to viable grounds of appeal.  In the first place and critically, she has not pointed to any error in the Judge’s decision and reasons.  Further, given the Board’s adverse findings on the credibility of her claim and the rejection of all the basic facts underlying her claim, there is no evidential basis to support her assertion that she faces risks of harm upon return to her country. 

20.  We have separately considered the Board’s decision on the applicant’s appeal against the Director’s decision.  We agree with the Judge that it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, and the intended judicial review application had no prospect of success.  The Judge was correct in refusing to give leave to apply for judicial review and dismissing the application.           

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 May 2021. 

[1] [2020] HKCFI 2592.

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

[3] This refers to the 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.

[4] 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.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2021] HKCFI 848.