AKTER SHAMIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 240/2021

[2022] HKCA 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 240 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2552 OF 2018)

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J U D G M E N T

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

1.  On 4 February 2021, Deputy High Court Judge C P Pang refused to grant leave to the applicant for her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1] (“the Judge’s Decision”).

2.  On 14 April 2021, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal. Thus, the time for filing her appeal ended on 18 February 2021. She was around two months out of time.

3.  On 10 June 2021, Deputy High Court Judge To refused to grant extension of time to the applicant[2].

4.  On 5 July 2021, the applicant filed the present application with the Court of Appeal seeking to renew her application to appeal the Judge’s Decision out of time.

5.  The applicant is a national of Bangladesh of 36 years old. She last entered Hong Kong on 19 July 2016 on her visa to work as a foreign domestic helper. However, her employment contract was terminated prematurely on 31 July 2016. She did not depart within the prescribed time limit. On 19 March 2017, she was arrested by the police. On 22 March 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband’s brothers and members of the Awami League (“AL”) and by money lenders as she had defaulted in paying loans.

The Director’s Decision

6.  By a Notice of Decision dated 21 February 2018 (“the Director’s Decision”), the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6].

The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board. She attended the hearing before the Board on 16 August 2018, during which she answered inquiries from the Board.

8.  The Board considered the applicant’s evidence in the non-refoulement claim form and her oral testimony. It accepted that there was a family dispute between her husband and his brothers due to different political affiliations. It was also plausible that the couple left home and moved to stay with the applicant’s mother because of the dispute. Nevertheless, the Board refused to accept that the dispute was ongoing. It observed that, after the death of her husband, there was no reason for the brothers to chase her and her allegation against the brothers for murdering her husband was pure speculation. As to her claim about the money lenders, while the Board accepted that there might be loans outstanding, it rejected her allegations that the money lenders would join force with her husband’s brothers to hurt her. Overall, the Board concluded that the gaps and inconsistencies in the applicant’s version of events rendered her claim untrustworthy. Therefore, the Board dismissed the appeal on 9 November 2018 (“the Board’s Decision”).

The Judge’s Decision

9.  The applicant filed a Form 86 and an affirmation on 13 November 2018 for leave to apply for judicial review against the Board’s Decision. She did not advance any grounds of review in her Form 86 or her supporting affirmation. Nor did she request an oral hearing. In these premises, the judge proceeded to consider her leave application on the available documents.

10.  The judge followed the case of Re Moshsin Ali [2018] HKCA 549 and held that as the Board’s Decision had superseded the Director’s Decision, and in the absence of any exceptional circumstances which would make her entitled to apply for judicial review of the Director’s Decision, the court should focus on analysing the Board’s Decision.

11.  As mentioned, the applicant failed to advance any grounds of review against the Board’s Decision. After rigorous examination and anxious scrutiny, the judge did not find any error of law, irrational findings or procedural unfairness in the Board’s Decision. He therefore dismissed the applicant’s leave application.

Application for extension of time in the court below

12.  On 14 April 2021, the applicant took out a summons seeking to appeal the Judge’s Decision. She explained that she did not receive the Judge’s Decision and frankly admitted that she did not inform the court about her change of address.

13.  On 10 June 2021, after hearing the applicant, DHCJ To found that the applicant failed to justify her two-month delay in lodging the appeal and that her intended appeal had no prospect of success. He refused to extend time to the applicant.

The renewed application for extension of time

14.  By a summons dated 5 July 2021 and a supporting affirmation filed on the same date (wrongly dated 15 June 2021), the applicant renewed her application for extension of time before the Court of Appeal. She did not advance any grounds for her intended appeal against the Judge’s Decision in her summons or supporting affirmation. She only repeated her explanation for delay that she did not receive the said decision. Further, she failed to file her written submissions as directed by the Registrar.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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 applicant’s delay of two months was substantial in the context of a statutory time limit of 14 days. Her explanation of not receiving the Judge’s Decision remains a bare assertion without documentary proof. We reject this explanation and proceed to consider the merits of her intended appeal.

17.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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. 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.

19.  In the present application, the applicant has not put forward any ground to reverse the Judge’s Decision. The applicant failed to show that she has any prospect of success in her intended appeal. We therefore refuse to extend time to appeal and dismiss the summons filed on 5 July 2021.