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CAMP 12/2022
[2022] HKCA 453
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 12 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 746/2018)
____________________
| RE: |
AKTER SHORNALEE |
Applicant |
____________________
Before: Hon Barma JA and Au JA in Court
Date of Judgment: 28 March 2022
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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 DHCJ C P Pang (“the Judge”) dated 17 July 2020 refusing to grant 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 (“the Board”) dated 16 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 21 November 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of Bangladesh. She arrived in Hong Kong on 1 November 2013 as a domestic helper, but she overstayed and subsequently surrendered herself to the Immigration Department on 21 June 2014. The applicant thereafter lodged a non-refoulement claim on 29 September 2014.
3. The applicant’s claim was based on a fear of being harmed or killed by members of the Chatra League if she was refouled. The details of the applicant’s claim have been summarised by the Judge at [2] to [3] of his decision (“the CALL‑1 Form”)[1].
4. By a Notice of Decision dated 21 November 2017, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 6 March 2018, the Board dismissed the appeal on 16 April 2018. The Board’s Decision covered all four grounds for non-refoulement protection. The Board rejected the applicant’s evidence, which it found to be incredible by reason of its inconsistencies.
The Judge’s decision
6. The applicant filed a Form 86 on 27 April 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review. In her supporting affirmation, she repeated her fears of a return to Bangladesh and stated that she wished to submit further documents to the court.
7. After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [8] to [16] of the CALL‑1 Form:
“8. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524. 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 and COI materials, 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.
9. The Director’s decision has been superseded by the Board’s decision and hence not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, the Court will only focus on the latter’s decision.
10. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it rejected the accounts of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, it concluded that she was not at real risk of harm of any of the proscribed types of harm. As mentioned, evaluation of evidence and the assessment of risk are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.
11. By a letter dated 11 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make. In response, the applicant sent a letter to Court reporting that her address remained the same and attached to it with the decisions of the Board and the Director.
12. The grounds raised by the applicant are just general and vague assertions, without any particulars as to how the Board was wrong, unfair or unreasonable in the public law sense.
13. As to the claim that she was unable to give her supporting document to the Board at the hearing, no reasons were given for her failure. She had plenty of time to obtain the documents before the hearing. Even in her affirmation in support and her last letter sent to the Court on 15 May 2020, she still failed to identify what the documents are and when she can submit them. There is no merit in this ground.
14. In the present case, the Board with the benefits of hearing the applicant of her oral evidence rejected her non-refoulement claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision. I do not find any reasonably arguable basis to challenge the finding of the Board.
15. 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 either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
Conclusion
16. For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review. I accordingly refuse to grant leave to apply for judicial review.”
The present application for extension of time to appeal
8. The applicant informed the court by a letter dated 22 August 2019 that her address was at Pei Ho Street, Sham Shui Po (“the Sham Shui Po Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Sham Shui Po Address on 17 July 2020. This letter was not returned undelivered.
9. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 July 2020.
10. The applicant took out a summons in the Court of First Instance on 26 February 2021 seeking extension of time to appeal, in which her address was stated to be at Kau Yuk Road, Yuen Long. She stated in the summons and her supporting affirmation that she wished to lodge an appeal out of time.
11. The applicant’s application to appeal out of time was dismissed by DHCJ To on 13 August 2021[6].
12. By a summons filed on 10 January 2022, the applicant renewed her application for an extension of time to appeal before this court. In the summons and her supporting affirmation, the applicant simply asked this court to grant her an extension of time.
13. In the applicant’s written submissions dated 24 January 2022, she merely repeated her fears and dangers if refouled to Bangladesh.
Discussion
14. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
15. The applicant has proffered no reason or explanation for the delay in bringing the intended appeal. The letter sent to her last known address was not returned undelivered. If the applicant’s case is that she did not receive it as she had changed address, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.
16. In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.
17. We have nonetheless proceeded to consider the merits of the intended appeal.
18. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
19. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision. The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
20. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
21. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
22. For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal. The summons filed on 10 January 2022 is accordingly dismissed.
| (Aarif Barma) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2020] HKCFI 1623
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 2209
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