RE AKTER SHAMIMA

HCAL 2552/2018

[2021] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2552 OF 2018

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D E C I S I O N

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Introduction

1.  This is the applicant’s application by summons dated 14 April 2021 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 4 February 2021 refusing her application for leave to apply for judicial review (the “Order”). 

2.  Under Order 53, rule 3(4) of the Rules of the High Court, 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.  By 14 April 2021, the time to appeal has expired.  The application for leave to appeal is two months out of time.  The breach is very serious, being more than four times the time limit for appeal.

3.  In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the court of Appeal held that in considering whether to extend time for appealing 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.

Length of the delay and reasons for delay

4.  The applicant gave no explanation for the two months’ delay in appealing the Order in the summons.  At the hearing, the court attempted to explore the reasons of the delay with her.  She alleged that she never received the letter from court, ie the Form Call-1; and that she only came to know about the result of her application from the Immigration Department when she went to make her regular reporting.  She said she had three changes of address to Tsim Sha Tsui, to Sham Shui Po a year ago and then to Hunghom.  She could not remember when she changed her address.  In all honesty, she confirmed that she had not informed the High Court when she moved to Hunghom.  That tallies with the court’s record.  That explains why the Form Call-1 sent to her last reported address in Sham Shui Po did not reach her.  Be that as it may, it was her own fault as it is her obligation to inform the court of her change of address. 

5.  The breach is very serious, being more than four times the time limit for appeal.  However, that is not fatal to her application.

The applicant’s case and the finding of the Board

6.  The applicant is Bangladeshi national.  She over-stayed in Hong Kong when her contract of employment as a foreign domestic helper was prematurely terminated.  She sought non-refoulement protection after she was arrested on 19 March 2017, claiming that she is in fear of being killed by her brothers-in-law and members of Awami League and by her creditors.  She said that her family were supporters of Bangladesh Nationalist Party (“BNP”) and claimed that because of her influence her husband changed his affiliation to BNP.  Awami League and BNP are two major antagonizing political parties in Bangladesh.  Awami League is the ruling party.  She said that she had been assaulted by her brothers-in-law and her creditors.  Then she came to Hong Kong to work as a foreign domestic helper to avoid the risk of being killed.  While in Hong Kong, she learned that her husband was killed by her enemies.

7.  The Director of Immigration (the “Director”) rejected her claims for protection on all four applicable grounds under the Unified Screening Mechanism. She appealed to Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”).  By its decision dated 9 November 2018 (the “Decision”), the Board dismissed her appeal.  In a nutshell, the Board found the applicant not a witness of truth and that she either exaggerated or fabricated her claims in relation to the feared harm from her brothers-in-law and her creditors, including her sister; that she took the circumstances of the estrangement of her husband’s family and the debt she was unable to repay to strengthen her non-refoulement claims; and that there is not a real risk she would face any of the proscribed harm should she return to Bangladesh.

The grounds for judicial review and decision of this Court now sought to appeal against

8.  The applicant stated no grounds of her judicial review.  She mentioned nothing in the application or in her supporting affirmation how the Board erred in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, DHCJ Pang found that there is no reasonably arguable basis to challenge the findings of the Board.  In rejecting her application, DHCJ Pang said:

“12. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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 are errors of law, procedural unfairness or irrationality in the decision of the Board.

13. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant finding her not a witness of truth. It found that she had either exaggerated or fabricated her claims in relation to her feared harms from her brothers in law and her creditors, by making use of the circumstances of the estrangement of her husband’s family and the debt she was unable to repay. 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 applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred 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. Indeed, the applicant delayed in lodging the claim for protection after the termination of her employment contract and she only made her application for protection after she overstayed and was arrested. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

18. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating only a remote and unreal risk of future harm.

19. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22. 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 their decisions. Nor do I see any failure on their part to apply high standards of fairness.

23.    For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Prospect of the intended appeal

9.  The applicant has not advanced any grounds of appeal.  During the hearing, I attempted to explore with her the grounds of her appeal and advised her of the usual possible grounds for challenging a decision refusing leave to apply for judicial review.  I also explored with her about procedural irregularities or unfairness in the proceedings before the Board.  She confirmed she had the services of an interpreter and was free to present her case; but disagreed with the Decision.  She asked for time to prepare her grounds of appeal.  Directions were given for her to lodge further grounds of appeal within 14 days.

10.  On 3 June 2021, the applicant lodged her further grounds of appeal.  She just repeated her case that her husband was killed; the Bangladesh government could not protect her safety; and thousands of Bangladeshi are killed everyday.  These are not valid grounds for appealing a decision refusing leave to apply for judicial review.  These are assertions of facts which the Board rejected.  In substance, she is seeking to challenge the finding of facts of the Board under the guise of judicial review which is not permissible.  This was also explained in paragraph 12 of the Form Call-1.  DHCJ Pang cited the correct legal principles and quoted the relevant authority.  There is no error of law in the decision. 

11.  For the same reasons as expressed in his well-considered decision, I am unable to find any possible criticism of the fairness and reasonableness of the Decision of the Board or criticism in the decision of DHCJ Pang in reaching that conclusion.  The applicant has adduced no arguable grounds of appeal with any prospect of success.

Prejudice to the respondent

12.  As for prejudice to the proposed respondent, it is usually not explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

13.  In summary, there is no valid explanation for the delay of a substantial length of time of two months.  That is not necessarily fatal to the application for extension of time.  But the absence of a good ground of appeal is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.