BEGUM SHULI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 219/2023, [2023] HKCA 934

On An Intended Appeal From [2023] HKCFI 1006 &

[2023] HKCFI 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 219 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 739 OF 2019)

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J U D G M E N T

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

1.  On 9 June 2023, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 20 April 2023 (“the Order”) refusing to grant her leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh. She entered Hong Kong on 20 April 2016 and was permitted to remain as a foreign domestic helper until 20 April 2018, or two weeks after the termination of her employment contract, whichever was the earlier. Her employment contract was prematurely terminated on 28 April 2016. She did not depart and overstayed illegally until her arrest on 25 September 2017. On 20 and 24 November 2017, she lodged a non-refoulement claim alleging that, if refouled, she would be harmed or killed by members of the Awami League (“AL”). Details of the Applicant’s claim have been summarised by the Judge at §5 of the CALL-1 Form, as follows:

“According to the applicant, she was a journalist from 2012 to 2015. As she supported the Bangladesh Nationalist Party (‘BNP’), she mostly reported the notorious news about the AL. In 2015, the AL members called her boss, asking him to stop writing about the AL. Her boss told them that the applicant possessed evidence against them in relation to their illegal women trafficking and drug deals. A few days later in August 2015, the AL members visited their office. They beat her boss to death and also raped her. The applicant was hospitalized for four days. Thereafter, the AL members visited the applicant’s house. Not only did they assault her father and threatened her daughter, they also framed her father for a false case, leading to her father’s arrest. After her father was released on bail, she escaped to Dhaka to stay with her aunt. In January 2016, the AL got the information from her daughter that the evidence was kept in her aunt’s place. They took the documents and killed her aunt. The subsequent report to the police was again of no avail. The applicant also feared that, since one of her rapists was arrested, the AL people would kill her as she might need to give evidence if returned. She also feared that she would be discriminated as a rape victim. As a result, the applicant sought protection in Hong Kong…”

5.  By a Notice of Decision dated 18 April 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 14 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§8-11 of the CALL-1 Form:

“[8] The applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board conducted an oral hearing for her appeal, during which she only stated that she would leave Hong Kong if BNP was in power but the reality was that AL was still the ruling party [21].

[9] Having considered the evidence, the Board found that her claim was not substantiated. In particular, the Board noted that the applicant was only raped once. While it agreed that this constituted pain and suffering, it noted that the AL members left after the applicant told them the evidence was not with her. Meanwhile, in January 2016, the AL members came to her aunt’s house and took the evidence. They did not attempt to locate the applicant, which meant that they only targeted the evidence. It further considered that the applicant was not harmed afterwards and she was only verbally threatened. In addition, the applicant’s assertion that the police were corrupted and irresponsible was proven to be wrong since the police had arrested one of her rapists who was also the murderer of her aunt. Besides, the AL did not act in any official capacity [22]. The Board also noticed that, on the applicant’s own confession, she came to Hong Kong not for protection but for employment [24].

[10] The Board also took into account the country of origin information which showed that state protection would be available to her [29]-[31]. In any event, internal relocation was a viable option as it was only her own speculation that her name was punished as a rape victim and that her reputation was damaged. Nevertheless, there were organizations that would assist her in this regard [45]-[50].

[11] In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.”

7.  On 18 March 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86 and in her supporting affirmation filed on the same date, she set out the factual background of her case, and complained that the Director and the Board acted in breach of procedural fairness, and their decisions were unreasonable. She also alleged that the Director and the Board failed to “meet the greater care and duty owed to a self represented claimant”.

THE JUDGE’S DECISION

8.  On 20 April 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[13] In her affirmation in support of her application, the applicant reiterated her factual story in support of her application. She further said that the Board’s Decision is unfair and unreasonable as the Board did not take in consideration her situation.

…

[17] The grounds as set out in paragraph 13 above do not assist her application as they are her personal opinions without any evidence in support. The Board had assessed her situations and, for the reasons given, found that she did have real risk of being harmed or killed upon her return to her country.

[18] There is no valid ground to challenge the Board’s Decision.

[19] 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.”

9.  On 9 May 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 6 June 2023, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.  By a summons taken out on 9 June 2023 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Order.

11.  In her written submissions dated 20 June 2023, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how those principles are applicable to her case.

DISCUSSION

12.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant has failed to show any arguable error in the Judge’s decision of 20 April 2023, or raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 9 June 2023 is dismissed.