RE SUMI

CAMP 113/2021

[2021] HKCA 1272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 113 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1138/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung given on 23 February 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 22 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 18 March 2015 and 18 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh. She entered Hong Kong on 14 January 2014 to work as a foreign domestic helper. Her contract was terminated prematurely in May 2014. She overstayed and was arrested on 17 July 2014. She lodged a non-refoulement claim on 20 July 2014.

3.  The applicant’s claim was based on threats from her husband and his uncle. The details of the applicant’s claim have been summarised by the judge at [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 18 March 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  By a Notice of Further Decision dated 18 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board. After a hearing on 24 January 2018, the Board dismissed the appeal on 22 March 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [34] of the Board’s Decision, the Board found that the applicant was not a reliable witness. The Board was also satisfied at [23] that state protection would be reasonably available and at [18] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 20 June 2018 seeking to judicially review the Director’s First Decision and the Board’s Decision which contained no ground for seeking relief.

9.  In her affirmation in support of the leave application filed on 20 June 2018, the applicant exhibited the relevant documents but she did not give any grounds for judicial review.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [18] of the CALL-1 Form:

“13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … Assessment of evidence and COI materials and risk of harm, state protection … are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The applicant has not set out any specific ground in support of her application.

16. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal. She failed to do so. By a summons dated 12 March 2021, the applicant sought leave to appeal out of time. Her application was dismissed by the judge on 7 April 2021.

13.  By a summons filed on 13 April 2021, the applicant renewed her application for an extension of time to appeal before this court. In the summons she stated that:

“… As a lay person I would like to appeal against the adjudicator finding the only fact established is that the learned judge had failed to consider all applicable grounds of non-refoulement claims and in particular non-refoulement on the grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance. So if is my kindly request to the court to please look after my case again.”

14.  In the affirmation dated 13 April 2021, the applicant deposed that her life will be in danger upon her return.

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 25 May 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

17.  We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal. We nonetheless go on to consider the merits of the intended appeal.

18.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

19.  The applicant contended that the judge should have considered the risks to her upon return, but for the reasons given above these are not the relevant considerations in an application for leave for judicial review. The judge had properly directed his mind to considering whether there was any public law error in the Board’s Decision and concluded there was none. This ground is thus without merit.

20.  As for the bare assertion by the applicant that it is unsafe for her to return, this ground does not pertain to any error on the part of the judge and is therefore not a viable ground of appeal.

21.  We therefore do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal. The summons of 13 April 2021 is dismissed accordingly.