SUMI TAHERA AKHTER v. TORTURE CLAIMS APPEAL BOARD

CAMP 319/2022

[2023] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 319 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2329 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 25 February 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 6 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there is no merit in the intended appeal[2].

3.  On 29 August 2022, the applicant filed the present summons with the Court of Appeal challenging the decisions of the court. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 25 February 2022.

4.  The applicant is a national of Bangladesh. She is 38 years old. She entered Hong Kong to be employed as a foreign domestic helper on 13 June 2016 but her employment was prematurely terminated on 26 August 2016. The applicant overstayed and was subsequently arrested on 10 May 2017. She then lodged a non-refoulement claim on 26 May 2017 on the basis that she would be harmed or killed by her abusive husband for leaving him if she is returned to Bangladesh.

5.  By a Notice of Decision dated 23 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision. She appeared before the Board for an oral hearing on 7 June 2018, during which she answered questions raised by the adjudicator. In essence, the Board did not accept the applicant’s claim that her husband would cause her harm if she is returned to Bangladesh. The Board found there were numerous inconsistencies in the evidence produced by the applicant and the evidence previously given to the Immigration Department. These included contradictions such as the claim to the Immigration Department that she was no longer in contact with her family, but she admitted at the hearing before the Board she has maintained communications with her sister. The applicant’s credibility was further undermined by her delay to raise her non-refoulement claim notwithstanding she has been in Hong Kong for a substantial amount of time. In light of its findings, the Board dismissed the applicant’s appeal on 19 October 2018.

The judge’s decision

7.  On 24 October 2018, the applicant filed a Form 86 for leave to apply for judicial review against the decision of the Board. As summarised by the judge[7], she put forward the following grounds for her intended challenge:

“(1) That the Board erred in failing to maintain high standard of fairness by not holding any oral hearing for the appeal to allow the Applicant an opportunity to put forward her case;

(2) That the Board failed to apply the minimum standards of procedural fairness required in its decision making process; and

(3) That the Board failed to take into account of the fact that the Applicant was not legally represented and that she has insufficient legal knowledge which could have jeopardized her representation in her appeal process.”

8.  The court had scheduled a hearing for her application. However, the applicant was absent in open court and the judge decided to deal with her application on paper.

9.  The judge did not accept the three grounds put forward by the applicant and held there was no reasonably arguable basis to challenge the findings of the Board. He held that the complaint in ground (1) has no factual basis; an oral hearing was held on 7 June 2018 during which the applicant testified before the Board and made further representations of her case and answered questions. As for ground (2), the applicant did not provide any details or particulars how the Board had failed to apply high standards of fairness in assessing her claim or her appeal. For ground (3), the complaint of lack of legal representation before the Board was not reasonably arguable, as the applicant had legal representation from the Duty Lawyer Service before the Immigration Department. Thus, the judge dismissed the applicant’s application on 25 February 2022.

Grounds of appeal

10.  The applicant did not provide any proper grounds of appeal in her summons or her affirmation in support. She merely stated she did not receive any documents from the court and she disagreed with the judgment. As for her written submissions, the applicant asserted that her life is threatened by an “enemy … very powerful influential and rich” and the police and authority help her enemy. Her claim at all material times relate to her husband who was abusive and had made death threats against her.

Analysis and disposition

11.  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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 25 February 2022. The applicant took out a summons in the court below on 25 April 2022. The High Court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022. The registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office.

13.  The applicant should have filed her summons promptly when the registry was re-opened on 12 April 2022. However, she failed to do so and was late for almost two weeks. Her explanation was that she had contracted COVID-19. She admitted before the judge she had no proof she caught the virus and she did not seek medical treatment at the time.

14.  Giving her the benefit of the doubt, and as the delay was not substantial, we will focus on the merits of her intended appeal.

15.  In assessing the merits 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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision and merely made bare assertions in her written submissions. We do not accept her statement that she did not receive any documents from the court, as she has provided to the court an updated address and contact number on 20 January 2022 and 17 February 2022 respectively. More importantly, she has failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 25 February 2022 and dismiss the summons filed on 29 August 2022.