AKTHER SAMIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 385/2022

[2023] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 385 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1089 OF 2019)

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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 16 June 2022, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 12 April 2019 (“the Board’s BOR 2 Decision”) concerning her non‑refoulement protection claim under the BOR 2 risk[1].

2.  On 11 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that she has any reasonable prospect of success in her intended appeal[2].

3.  On 27 September 2022, the applicant filed the present summons with the Court of Appeal to essentially challenge the judge’s decision dated 11 August 2022. In light of the decision 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 16 June 2022.

4.  The applicant is a national of Bangladesh. She is 39 years old. She entered Hong Kong on 9 August 2014 to be employed as a foreign domestic helper but her contract of employment was prematurely terminated on the date of arrival. She then overstayed and was subsequently arrested by the police on 9 September 2014. On 11 September 2014, the applicant raised a non-refoulement claim on the basis that she would be ill-treated or even killed by members of the Awami League as her father was in an opposing political party, the Jatiya Party.

5.  By a Notice of Decision dated 21 May 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5] (“Director’s First Decision”).

6.  By a Notice of Further Decision dated 16 October 2017, the Director found that the applicant’s claim did not engage BOR 2 risk[6] as there was no evidence to show that her right to life would be violated upon her return to Bangladesh (“Director’s Second Decision”).

7.  The applicant appealed against the Director’s First Decision to the Board and attended the hearing before the Board on 13 October 2016. The Board did not find the evidence of the applicant credible. In particular, the Board found that the Awami League members had merely harassed and teased her by verbal threats, which were common in Bangladesh at the material time. The applicant also admitted that her purpose to come to Hong Kong was for work. In any event, the Board found there was adequate state protection and internal relocation was not unduly harsh for the applicant. Therefore, the Board agreed with the Director’s First Decision and rejected the appeal on 28 April 2017.

8.  As for the applicant’s appeal against the Director’s Second Decision, she only made bare allegations without evidence in support why she could not return to Bangladesh. Therefore, the Board again agreed with the Director’s Second Decision that the BOR 2 risk was not engaged and dismissed her appeal.

The judge’s decision

9.  On 24 April 2019, the applicant applied for leave to apply for judicial review against the Board’s BOR 2 Decision. There were no grounds provided for seeking relief in the applicant’s Form 86 and in her supporting affirmation, she simply stated she wishes to have the decisions of the authorities set aside. The applicant requested an oral hearing but failed to attend, the judge therefore dealt with the application on paper.

10.  The judge held that there was no ground in support of the application as no error of law or procedural unfairness by the Board was found. The judge further held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 16 June 2022.

Grounds of appeal

11.  The applicant did not provide any grounds of appeal in her summons or her supporting affirmation, other than stating that she did not get the decision from the Court, which was already contended before the judge below. As the judge stated, the Court’s decision was sent to her last known address on 16 June 2022 according to the record. As for the applicant’s written submissions, she again repeated the basis of claim and the risk of harm if she is returned to Bangladesh.

Analysis and disposition

12.  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.

13.  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 16 June 2022. The applicant took out a summons in the court below on 19 July 2022. She was late for over 2 weeks. While this is not the most serious delay, the applicant did not provide any explanation nor justification.

14.  As the applicant’s delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

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 in refusing to grant leave against her to bring judicial review. As to her allegation that she did not receive the Court documents, this has been dealt with by the judge in his decision dated 11 August 2022 at §5.

18.  In the circumstances, 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 16 June 2022 and dismiss the summons filed on 27 September 2022.