RE AKTER SHAFALI

CAMP 234/2019

[2020] HKCA 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 234 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 420/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed on 25 September 2019, the applicant sought leave to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 23 September 2019 ([2019] HKCFI 2200). In that decision, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision given on 21 June 2019 ([2019] HKCFI 605) refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 6 June 2017 rejecting the applicant’s claim for non-refoulement protection in Hong Kong, as well as the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 18 December 2017 upholding the Director’s decision.

Background

3.  The applicant is a national of Bangladesh.  She first arrived in Hong Kong on 18 November 2014 with a permission to remain as a domestic helper.  Her employment was terminated prematurely, and she was required to depart on or before 6 February 2015.  Instead of leaving Hong Kong as required, she overstayed illegally.  She surrendered to the Immigration Department on 1 April 2016 and lodged her claim for non-refoulement protection on 18 November 2016. 

4.  The applicant’s claim is based on the fear that, if refouled, she would be harmed or killed by her husband and her husband’s friends because they were afraid that she would expose the sexual assaults they perpetrated on her.  She also claimed that she was framed in a false charge by her husband in order to force her to return home.   The factual background of the case was summarized by the Judge at [2] – [6] of the Form CALL-1 ([2019] HKCFI 605).    

5.  By a notice of decision dated 6 June 2017[1], the Director rejected the applicant’s claim.  The decision covered the risk of the violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights Ordinance (particularly the BOR 3 risk[2] and the BOR 2 risk[3]), the persecution risk[4], and the torture risk[5].

6.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  Although an oral hearing had been arranged to be held on 1 November 2017, the applicant failed to attend the hearing.  Accordingly, the Board proceeded with the assessment of the applicant’s claim on the papers.  Having considered the materials placed before it, the Board considered that, even if it were to accept that the applicant was a victim of domestic violence and sexual assaults, that would not amount to a real risk of harm entitling her to non-refoulement protection[6]since she had been able live in Bangladesh unharmed for a period of two years after the alleged assault. As regards the false charge against the applicant, the Board had doubts about the claim and found nothing indicating that she would not receive a fair trial[7]. It was noted that she had been able to get her passport after the alleged false charge. The Board concluded that there was insufficient evidence to establish that the applicant would be subjected to a real risk of ill-treatment if refouled[8]. By a decision dated 18 December 2017[9], the Board dismissed the applicant’s appeal/petition.

The Judge’s decisions

7.  On 15 March 2018, the applicant applied for leave to seek judicial review against the Board’s decision.

8.  Upon the request of the applicant, an oral hearing was originally scheduled for 16 January 2019. That hearing was adjourned because the relevant notice of hearing was defective.  The applicant attended the adjourned hearing on 26 February 2019.

9.  As mentioned earlier, the Judge refused to grant leave to the applicant to apply for judicial review.  The applicant’s grounds for review and the Judge’s reasons in refusing leave were set out at [11] – [16] of the Form CALL-1 as follows:

“ 11. On 15 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing her non-refoulement claim;

(2) that their decisions were not fair or reasonable as required by the Wednesbury test;

(3) that they failed to take into consideration the right to life must be protected from extra-judicial killings which she may face if deported to Bangladesh; and

(4) that the adjudicator failed to give her sufficient time and opportunity to arrange relevant evidence for her non-refoulement claim and her appeal.

12. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to her claim, or how the adjudicator failed to give her sufficient time or opportunity to produce relevant evidence in support of her claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even now in her present application before me or at her oral hearing, she did not produce any further or additional evidence in support of her claim. In the premises I do not find any basis or merits in any of these grounds of the applicant or that any of them is reasonably arguable for her intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

14. The fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and 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 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.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

10.  The applicant did not file any notice of appeal against the Judge’s decision within the statutory time limit of 14 days under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A. 

11.  On 16 July 2019, the applicant took out a summons for leave to appeal out of time.  It was stated in the summons, as well as in the supporting affirmation filed on the same day, that the applicant did not receive the order within reasonable period of time allowing her to appeal within time.  The Judge heard the summons on 7 August 2019.  While it was accepted that the length of delay was neither substantial nor excessive, the Judge did not find any prospect of success in the intended appeal.  The summons was therefore dismissed.

The present application

12.  The applicant took out the present summons on 25 September 2019.  In the affirmation filed on the same day, the applicant repeated that the deadline for appealing had already been expired when she received the judgment.

13.  The applicant lodged her written submissions on 15 October 2019.  In it, she quoted some passages from ST v Director of Immigration[10] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  She further submitted that the Board acted in a procedurally unfair manner and failed to access her credibility properly.  She also complained about the Wednesbury unreasonableness of the decision-makers, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 in support.  Finally, the applicant referred to section 37ZT of the Immigration Ordinance (Cap 115).

Legal principles

14.  Order 59, Rule 15 of the Rules of the High Court empowers this Court to grant an extension of time for filing a notice of appeal.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8], we would treat the present application as an renewed application for extension of time.

15.  In considering whether to extend time for leave to appeal against an interlocutory decision, the court will have regard to: (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.

16.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

Discussion

17.  The Judge found that the applicant’s delay was neither substantial nor excessive.  We are also prepared to proceed on the basis that the delay was excusable.

18.  We now turn to consider the merits of the intended appeal.

19.  In the present case, the Board rejected the applicant’s claim based on its assessment that there would not be a real risk of harm if she returned to Bangladesh.  As the Judge correctly pointed out at [13] of the Form CALL-1, the assessment of harm is primarily within the province of the Board and the Court will not intervene unless the finding is reversible on public law grounds.  The Judge, having considered the case with rigorous examination and anxious scrutiny, could not find any such ground.

20.  In this application, the applicant did not pinpoint any errors in the Judge’s analysis.  Having considered the materials before us, we do not find any errors either.

21.  In the absence of proper factual and evidential foundation for substantial risk of harm upon refoulement, the legal authorities cited by the applicant in her written submissions cannot avail her in the intended appeal. 

22.  Nor can we see any relevance of section 37ZT in the present context, which concerns the late filing of notice of appeal to the Board.

23.  To sum up, the applicant fails to pinpoint any viable ground to reverse the Judge’s decision.  In such circumstance, there is no prospect of success in the intended appeal.  It is futile for us to extend time to allow the applicant to prosecute a hopeless appeal.  Accordingly, we dismiss the applicant’s summons filed on 25 September 2019.

24.  We also direct that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, the applicant may not apply for an oral hearing to reconsider her application.