RE SHAHANAJ BEGUM MOST

CAMP 322/2022, [2023] HKCA 1053

On Appeal From [2022] HKCFI 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 322 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1508 OF 2021)

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J U D G M E N T

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

1.  On 5 January 2022, DHCJ P. Li (“the Judge”) refused to grant an extension of time to the applicant for leave to apply for judicial review concerning the applicant’s non-refoulement claim and dismissed her leave application. (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 25 April 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ To on 12 July 2022.

3.  On 30 August 2022, the applicant filed her summons in CAMP 322/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged her written submissions in support of the Summons on 13 September 2022. 

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Bangladesh.  She came to Hong Kong on 13 February 2017 under a foreign domestic helper contract.  Her contract was terminated prematurely but she did not leave and overstayed.  She was arrested on 2 July 2019.  On 2 September 2019, she raised a non-refoulement claim alleging that if refouled, she, being a supporter of the Jamaat Party (“JEI”), would be harmed, ill-treated or killed by her husband who is a supporter of the ruling party Awami League (“AL”), as she refused to support the AL and to settle a loan she obtained for her husband.  The factual background of this case was succinctly summarised by the Judge at [2] – [12] of the JR Decision ([2022] HKCFI 21).

7.  By a Notice of Decision dated 26 November 2019, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 23 October 2020.  By its decision dated 11 January 2021, the Board dismissed the applicant’s appeal.  For the reasons set out at [42] to [83], the Board accepted the basic facts of the applicant’s case but found that her problem merely involved domestic violence with no official/state involvement.  Although she rejected her husband’s request to change allegiance from JEI to AL and he assaulted her, there was no evidence that the party or government played any part in her husband’s assault on her.  She did not sustain any serious injury that attained the minimum level of severity.  Further, as the applicant had not contacted her husband for a long period of time, and her husband has married another woman, it was unlikely that her husband would still be interested in her.  Moreover, the applicant did not raise her non-refoulement claim until she was arrested for overstaying in Hong Kong and taking up unapproved employment, which delay cast doubt if she is a genuine asylum seeker.  In any event, relevant country of origin information (“COI”) suggested that there is reasonable state protection and internal relocation was a reasonable option to avoid the creditor.  For the aforesaid reasons, the applicant's non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 1 November 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1) of the RHC requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  By then the applicant was out of time with her application by more than 6 months.

10.  The applicant did not apply for extension of time.  She wrote to the court in a letter dated 6 December 2021 that she had lost all her documents after she was arrested in November 2020 and was then detained in CIC.  She failed to advance any ground for her intended challenge in her Form or her supporting affirmation.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of her application on paper.  After due consideration of the decision of the Board, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application with reasons set out in [19] - [23] of the JR Decision:

“19. In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application.

20. The applicant did not apply for extension of time. She did not explain the reasons for the delay. Her letter mentioned above adds nothing to her claim. Detention in CIC is a matter for the Director.

21. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

22. The adjudicator had analysed her case in detail. The applicant was not reliable. The evidence could not support any claim of protection. I agree with the findings of the adjudicator that there is no real risk of harm.

23.  In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 25 April 2022 for an extension of time to appeal.  That was dismissed by DHCJ To on 12 July 2022.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.  As for (1), the applicant was late by more than 13 weeks between the deadline for filing her appeal against the JR Decision (19 January 2022) and the summons filed in the Court of First Instance (25 April 2022).  Even if one were to exclude the General Adjournment Period (7 March 2022 to 11 April 2022) her delay was substantial.

15.  As for (2), the reasons for the delay, she merely stated in her affirmation that she did not receive the JR Decision in time.  To allow her to present a proper case, the court gave directions by letter dated 16 May 2022 for the applicant to file a statement to explain the date and the circumstances under which the JR Decision and the court order were received or brought to her attention as well as the grounds of her intended appeal.  However, she failed to respond. 

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  Despite the directions give to the applicant to state her grounds of appeal, she failed to put forward any proper or valid grounds of appeal, or any particulars of any error in the JR Decision. 

17.  In her written submissions, the applicant reiterated the factual allegations of her claim.  She said there were “many errors of processing” without identifying any.        

18.  It is clear from the Board’s decision that the applicant failed to convince the Board that she came under any threat as a personal target of AL, nor any continuing threats to her from her ex-husband or by the AL.  Relevant COI suggested that there is reasonable state protection and she may relocate to other districts to avoid her husband and the creditor.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and has applied the right test as set out in AW v Director of Immigration [2016] 2 HKCA 393 in refusing to grant an extension of time for the application to apply for leave for judicial review and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 August 2022.