RE AKHI

CAMP 367/2021

[2021] HKCA 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 367 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 3003 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) given on 20 May 2021 refusing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of her application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) refusing her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 34. She entered Hong Kong on 13 September 2013 with permission to remain to work as a domestic helper. After her employment contract was prematurely terminated on 25 July 2014, she overstayed and was arrested by the police on 22 May 2017. She later raised a non-refoulement claim based on fear of being harmed or killed by her creditors due to her inability to repay her debts. The details of the applicant’s claim were set out in the Director’s decision at [7]. We will not repeat them.

6.  By his decision dated 9 February 2018, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 19 November 2018, during which the applicant answered questions from the Board. By its decision dated 10 December 2018, the Board dismissed the appeal. The Board had significant concerns about important aspects of the applicant’s evidence and her credibility. The Board was not satisfied that she had borrowed money or that she was targeted for harm in connection with any loan. The Board was further not satisfied that she faces a real chance of harm of any kind in her home country in the reasonably foreseeable future for any of the reasons claimed. The Board concluded that the applicant is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 28 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. The grounds put forward by the applicant were summarised by the Judge (Form CALL-1 dated 20 May 2021[5] at [18]) as follows:

“ (1) she was not legally represented before the Board;

(2) the Decision erred in law or was otherwise procedurally unfair;

(3) the Board failed to adopt a proper structured approach in assessing her credibility;

(4) there was no reasoned, considered approach in evaluating the evidence, the Board’s finding is based on its own assessment of the evidence in an ad hoc manner;

(5) the Board was in breach of the duty to maintain a high standard of fairness;

(6) the Board made assumptions without reference to the context in Bangladesh; and

(7) the Board failed to consider the Applicant’s and her family’s situation, the physical and mental torture she suffered and her mother’s illness.”

9.  The Judge heard the application at an oral hearing. By his decision contained in the Form CALL-1 dated 20 May 2021, the Judge dismissed the application and gave his reasons at [19] to [27] as follows:

“Ground (1) – lack of legal representation

19. Torture claimants are usually provided with legal assistance by the Duty Lawyer Service up to the stage of the screening interview, but not the proceedings thereafter. Usually they are not represented before the Board. In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. What is important is to ensure that the claimant is not prejudiced for want of legal representation.

20. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director. The non-refoulement claim form and statement which essentially contain the essence of her claim were prepared with legal assistance and legal advice. These documents were before the Board at the oral hearing. Though the claimant may not have the full advantage of legal representation, she had at least the minimum that legal assistance could assist her. The Board has a duty to maintain a high standard of fairness and ensure a fair hearing. At this hearing, the Applicant confirmed that she had the services of a qualified interpreter at the oral hearing before the Board and that she was free to present her case and make submissions. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation at the oral hearing before the Board.

Ground (2) – error in law and procedural unfairness

21. The Applicant did not particularise the error in law and the unfairness complained of. All that she could say was that the Decision to refoule was erroneous and unfair because she still had problem at home. The Decision was based on the Board’s finding of facts and the Applicant’s credibility.

Grounds (3), (4) and (7) – credibility

22. The Applicant was asked to elaborate on these grounds. Despite repeated attempts, all that she could say was that her problem is still there and she cannot return to Bangladesh. She said she had already made her submission in writing and relied on those submissions.

23. These are complaints about finding of credibility and finding of facts which are exclusively within the province of the Board as the tribunal of facts. The Board considered its first task was to make findings on relevant factual matters. It bore in mind section 37ZD of the Immigration Ordinance which identifies factors which may be considered damaging to a claimant’s credibility, as well as relevant sections of the Principles, Procedures and Practice Directions of the Board, and Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme[12]. These materials provide guidance in assessing a claimant’s credibility and the reliability of her claims and evidence. In its Decision, the Board outlined topic by topic its examination of the various issues material to the Applicant’s claims. The Board spent nine and a half pages in its analysis. In the end, the Board was not satisfied that the Applicant was a credible witness and rejected her evidence about the loans, the physical and mental suffering she alleged she had suffered. The Court did not consider there was any substance in these grounds.

Ground (5) – breach of high standard of fairness

24. The Applicant also failed to identify in what way was the Board in breach of its duty to maintain a high standard of fairness. Having considered the Decision and the evidence, the Court was satisfied that the Board had maintained a high standard of fairness in the conduct of the proceedings before it.

Ground (6) – assumptions out of context

25. The Applicant quoted paragraphs 27 and 28 of the Decision in relation to this ground. In paragraph 27, the Board discussed the inconsistencies between the Applicant’s evidence about the assaults and treatments she and her father received at the hands of creditors. In paragraph 28, the Board discussed the Applicant’s mother’s illness. The Board actually accepted the Applicant’s evidence. It did not refer to or rely on any assumption.

26. If by “assumption” the Applicant meant the requirements which a claimant has to prove to substantiate a claim under any of the applicable grounds, such as harm of a minimum level of severity and the like, she is obviously misconceived. These are not assumptions used by the Board to disentitle her from the claims but requirements she has to prove to substantiate her claims.

27. It is difficult to understand what the Applicant’s complaint is under this ground.

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[5] CACV 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] The Decision at para 17”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 3 June 2021.

11.  On 18 June 2021, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers, and by his decision handed down on 13 August 2021[6], refused the application.

12.  On 31 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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.

14.  The applicant was late by 15 days. In the application made to the Judge, she asserted that she did not receive the court’s decision and order within the 14 days’ period. She explained that she lived in a sub-divided unit and the key to the mail box was kept by the landlord who collected and distributed the mails to the tenants once or twice a month. Having regard to the relatively short delay, we would focus on the prospects of success of the intended appeal.

15.  In considering the merits of the intended appeal, we 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 judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant’s supporting affirmation set out the following grounds in support of the application:

(1) She did not agree with the decision, which is irrational.

(2) There are many more unacceptable and unexplainable grounds in refusing the summons to extend time for appeal.

(3) She is a genuine non-refoulement claimant who will face harassment and torture in her home country. She was unable to find any place to stay safely so she fled abroad to save her life.

(4) Had she not run away, she would certainly have been killed by her enemy. Her enemies are still looking for her.

18.  The applicant’s written submission further stated that:

(1) The Judge did not properly analyse her claim. The Judge did not take care in dealing with her application despite her problems at home were severe and she had submitted all her proofs.

(2) The Judge was wrong as a matter of law in not applying the principle of irrationality to the decisions of the Director and the Board.

(3) The Judge was wrong as a matter of law in not applying the principle of procedural unfairness to the decisions of the Director and the Board whereby they were required to give reasons justifying their decision.

(4) High standard of fairness should apply because her fundamental right not to be subject to torture is involved, and the decision has the significant effect of finally disposing of her claim rendering her liable to be removed to her home country.

(5) The Board failed to give her sufficient opportunity to arrange evidence relevant to her non-refoulement claim and her appeal.

(6) The Board relied on source of news which is not officially recognised or is simply hearsay.

(7) If she returns to her home country, she will face hardship and will be killed by her enemy, who is still looking for her. She has no faith the Bangladesh government or police will help her.

19.  In our view, the grounds and arguments put forward by the applicant cannot amount to arguable grounds of appeal against the Judge’s decision. In the first place, they are all assertions without supporting particulars or details. Secondly and importantly, the Judge had given careful consideration to the grounds for seeking relief, which are similar to those put forward in the present application. We agree, for the reasons given by the Judge (at [19] to [27] of the Form CALL-1, see [9] above) that the complaints against the decisions of the Board and the Director are unarguable. We do not accept there are legal errors, irrationality or procedural irregularities in the Director’s and the Board’s decisions. Nor do we accept that the Judge has erred in law or in finding the intended judicial review has no reasonable prospect of success.

20.  As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 31 August 2021