RE KHONDOIKER MOSAMMAT RUMANA

CAMP 502/2022, [2024] HKCA 284

On appeal from [2022] HKCFI 2583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 502 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 643/2019)

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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 KW Lung (“the Judge”) dated 19 August 2022[1] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same date) refusing leave to the applicant to apply for judicial review.

2.  The applicant, had by a Form 86 filed on 6 March 2019 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 February 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 1 November 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim. 

3.  In the Form 86, the applicant, apart from setting out her grounds for judicial review, requested that an oral hearing be fixed for the determination of the JR Application.

Procedural background and the applicant’s right to an oral hearing

4.  O.53 r.3 of the Rules of the High Court (Cap.4A) (“the Rules”) sets out, inter alia, the applicable procedure for the determination of the JR Application.  Rule 3(3) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.  Despite the applicant’s request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief (at [2] of the CALL-1 Form), the JR Application had not been listed or fixed for hearing.

6.  By a letter dated 23 March 2022 to the applicant, the Judge’s clerk informed her of the following:

“We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so.  Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.  If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper.  A written decision will be sent to you at your last known address.”

7.  The applicant did not respond to that letter, and the Judge, purportedly invoking his discretionary and case management powers under O.1A r.1(b), O.1B r.1(1) and O.53 r.3(3) of the Rules, proceeded to determine the JR Application on the papers (see [2]-[4] of the CALL-1 Form).

8.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the JR Application on the papers.  It is therefore arguable that the Judge had erred in law and fact in determining the JR Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; and Re Pervin Jahanara [2023] HKCA 1064 at [20].

9.  It therefore follows that in exercising his discretion to refuse leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the JR Decision on an erroneous basis.

10.  In the premises, notwithstanding that applications of this kind (such as the present renewed application for extension of time to appeal) are usually determined by this court on the papers, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present application, as well as to make submissions which she would have made to the Judge in the court below had a hearing for the determination of the JR Application been fixed pursuant to her request.

11.  By reason of the problematic basis on which the JR Decision was reached by the Judge, this court will, in determining the present application for extension of time to appeal, exercise afresh the court’s discretion with respect to the JR Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review should have been granted to the applicant by the Judge.

Background to the applicant’s non-refoulement claim

12.  The applicant is a national of Bangladesh.  She entered Hong Kong as a foreign domestic helper on 14 October 2014, but she had overstayed after the premature termination of her employment contract, and she was arrested by the Immigration Department on 1 August 2018. On 7 August 2018, the applicant lodged a non-refoulement claim.

13.  The applicant’s claim was based on a fear of being harmed or killed by her uncle and/or her ex-husband due to a property dispute.  The details of the applicant’s claim have been summarised by the Judge at [5] to [6] of his decision (“the CALL-1 Form”).

14.  By a Notice of Decision dated 1 November 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

15.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was fixed on 28 January 2019. The applicant appeared at the hearing in person.

16.  The Board made the following material findings of fact based on the evidence filed and the live evidence given by the applicant at the hearing:

(1)  as regards the applicant’s fear of harm from her husband Rassel, there was no credible evidence to suggest that he intended to kill or harm her in order to force her to ask her father for money, in order to feed his drug habit (see [50], Board’s Decision);

(2)  the applicant’s apparent fear of harm from her uncle Chand is likewise unfounded on the evidence, as there was no plausible reason for him to harm her, because it was highly unlikely under Muslim Law that she would be able to derive much benefit from her father’s land upon his passing (particularly when her father was still alive and well) (see [46], [53] of the Board’s Decision).

17.  The Board found that most, if not all, of the core assertions by the applicant in her claim were “fabricated” or were “wholly unreliable” (see Board’s Decision at [53]). 

18.  The applicant’s appeal was therefore dismissed by the Board’s decision dated 26 February 2019 (i.e. the Board’s Decision).

The Judge’s decision

19.  By the Form 86, the applicant sought to judicially review the Board’s Decision, in which she requested that her application for leave to apply for judicial review be determined at an oral hearing, as well as setting out her grounds for review, which were summarised by the Judge at [13] of the CALL-1 Form, as follows:

“13.  In her affirmation in support of her application, the applicant said she only received the hearing bundle 6 days before the hearing. The contents of it is in English and she did not understand it. At the hearing, she was confused. But she had answered all the questions from the Board. The Board had considered the news, the source of which is outdated or hearsay, not recognized officially. The Board therefore had made speculation that it is safe for her to return to her country.”

20.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [14] to [20] of the CALL-1 Form:

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

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  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 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 or procedural unfairness or irrationality in the decision of the Board.’

17.  The grounds raised by the applicant in paragraph 13 above do not assist her. She did not tell the Board that she was confused by the hearing bundle. On the contrary, she said that she had answered the questions put to her by the Board. As to speculation of the Board, it is only her bare assertion without any evidence in support. The applicant has not raised any valid ground in support of her application.

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

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

CONCLUSION

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

The present application for extension of time to appeal

21.  The applicant’s address as stated in her Form 86 was at Castle Peak Bay Immigration Centre.  The applicant on 22 March 2021 notified the court of her change in address to No 48 Battery Street, Yau Ma Tei, and on 6 January 2022 she again updated the court that her latest address was at No 190 Temple Street, Yau Ma Tei (“the Temple Street Address”).

22.  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 Temple Street Address on 19 August 2022, and were not returned undelivered.  

23.  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 19 August 2022.

24.  The applicant thereafter took out a summons in the Court of First Instance on 14 September 2022 seeking extension of time to appeal, in which her address was stated to be the Temple Street Address.

25.  In her supporting affirmation filed on the same date, she contended that the lack of an oral hearing before the Judge for the substantive leave application rendered his decision unfair, that she did not receive a copy of the CALL-1 Form, and that she was unaware of the 14‑day period in which she was permitted to lodge an appeal. 

26.  The applicant’s application to appeal out of time was dismissed by the Judge on 13 October 2022[6].

27.  By a summons filed on 29 November 2022, the applicant renewed her application for an extension of time to appeal before this court.  In her supporting affirmation, the applicant repeated her contentions as stated in the affirmation in support of the summons filed on 14 September 2022 in the court below.

28.  In her written submissions lodged on 12 December 2022, the applicant merely referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

29.  We acknowledge that the applicant had in her Form 86, under O.53 r.3(3) of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was not open to the Judge to determine the leave application on the papers in these circumstances as he purported to do.

30.  This court therefore directed that an oral hearing be fixed for the present application as explained in [10] above.  The Board and the Director were excused from attendance at the hearing.

31.  We heard the application on 16 January 2024.  The applicant was absent at the hearing, and we have therefore proceeded to dispose of the present application based on the materials that have been lodged with the court by the applicant.

Discussion

32.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered the applicant’s JR Application afresh.

33.  Thus, notwithstanding the lack of an oral hearing before the Judge, the applicant was in any event afforded an opportunity to make submissions to this court at the hearing of the present application on 16 January 2024, notwithstanding that she was absent at the hearing.

34.  In the affirmation filed on 29 November 2022 in support of the present summons, the applicant complained that “the [JR Decision] made by [the Judge] has been reached unfairly without allowing [her] an opportunity to clarify [her] case and situation in [her] country”.  The applicant was however, given an opportunity by this court to make the relevant submissions at the hearing on 16 January 2024, and at which she decided not to appear.  

35.  For the following reasons, we are of the view that the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

36.  As noted above, the JR Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the JR Decision within the period she was permitted to lodge the intended appeal.

37.  There is no explanation on the part of the applicant as to when she had come to learn of the JR Decision dated 19 August 2022, apparently from her Immigration Officer.

38.  In the circumstances, we reject the applicant’s explanation or reason for the delay in lodging the intended appeal.

39.  As to the substantive merits of the intended appeal, the applicant has not condescended to any or any sufficient particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

40.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

41.  Save for the apparent procedural error by the Judge (which we have dealt with above), 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.  We have also subjected the Board’s Decision to anxious scrutiny and have found no reasonable basis for intervention.

42.  We are unpersuaded by her complaint as to the apparent lack of language assistance, as she was clearly able (whether by herself or with the assistance of others) to lodge comprehensible English documents and submissions with the court and in the processing of her claim below.  Her apparent ignorance as regards the 14-day period for appeal likewise does not advance her position in this application.

43.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the processing of her non-refoulement claim.

44.  In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  Due to its lack of merits, we would have refused to grant leave for the applicant to apply for judicial review.  The JR Application was rightly dismissed.

45.  In the premises, there is clearly no prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 29 November 2022 is accordingly dismissed.