RE TALUKDER SOMA

CAMP 120/2022

[2022] HKCA 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1656 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 20 April 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”)  dated 5 January 2022 refusing her application for leave to apply for judicial review ([2022] HKCFI 18)  (“Leave Decision”). By an earlier judgment dated 25 March 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 823)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 13 June 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 9 August 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Bangladesh.  She last arrived in Hong Kong on 19 March 2015 and worked as a domestic helper with a limit of stay until 19 March 2017 or two weeks after termination of contract, whichever was earlier.  On 23 April 2015, her contract was prematurely terminated.  She did not depart Hong Kong and has overstayed since 8 May 2015. By the written representation dated 6 December 2015, she raised a non-refoulement claim on the basis that she would be harmed or killed by activists from Awami League (“AL”)  if she returned to Bangladesh. Details of the applicant’s claim were summarised by the Deputy Judge at [2] - [9] of the Leave Decision.

5.  By a Notice of Decision dated 9 August 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  

6.  On 17 August 2018, the applicant appealed against the Director’s Decision to the Board.  On 13 March 2019, she attended an oral hearing before the Board and a Bengali interpreter was also present to provide language assistance.  On 13 June 2019, the Board dismissed her appeal.  The Board found that the applicant was not a credible witness and that there were a number of important discrepancies between the various accounts provided by the applicant in relation to her experience in Bangladesh.  The Board also found that the applicant and her family had never been harmed and that the assertions of the applicant did not support any ill-treatment which attained a minimum level of severity.  Having assessed the evidence, the Board considered that the applicant failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 17 June 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In support of her application, she contended that the Board was procedurally unfair and that she was not provided with language assistance.  She further contended that the Board had significantly relied on news which was not officially recognised or was simply hearsay.  She also contended that it was unfair for the Board to assess her claim on the ground of BOR2 risk without the same being screened by the Director.  She further asserted that her life would be in danger in Bangladesh and that the Board failed to properly inquire or carefully understand her situation.

8.  Although an oral hearing was fixed to be heard before the Deputy Judge on 25 October 2021, the applicant did not attend it.  Accordingly, her application for leave to apply for judicial review was considered by the Deputy Judge on paper.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [14] - [25] of the Leave Decision:

“14. The applicant filed the leave application for judicial review on 17/6/2019. In her affirmation in support, she stressed that her life was under threat in Bangladesh. Her enemies were the AL members. She disagreed with the decisions of the TCAB and the Director.

15. In her affirmation dated 17/6/2019, she pointed out that the hearing bundle was served on her a few days before the TCAB hearing. She was unable to understand the documents as they were in English. She could not find any interpreter. She did not understand the hearing. However, she had answered questions honestly but was disappointed to be found not credible.

16. The 3 significant documents in the hearing bundle were the Director’s decision, the record of interview before the Director and the NCF. The latter 2 documents were made with the assistance of an interpreter. The Director’s decision must have been explained to her by the DLS. The applicant should have no difficulty understanding all of them. Her form 86 and affirmation were in typewritten English. This demonstrates that she was able to find language assistance.

17. During the TCAB hearing, the adjudicator explained the procedures to her. She confirmed that the information in the NCF and the Interview was correct. The applicant clarified matters raised by the adjudicator. She had no complaint during the TCAB hearing.

18. Had she felt confused in the TCAB hearing, she should have raised it with the adjudicator. There was no record of any complaint.

19. The adjudicator did not rely on any news reports. The adjudicator found that there were serious inconsistencies in her evidence and rejected her claim. It was the Director who pointed out some news reports which were from Dhaka Tribune and BDnews24.com. There was no information that these were unreliable news agencies. It was an allegation without actual evidence from the applicant. In any event, they were cited to corroborate the COI. They were not the sole sources to support reasonable State protection.

20. Both the Director and the TCAB had assessed the BOR 2 risk based on the evidence. The assertion that the Director had not screened BOR 2 risk was wholly unfounded.

21. This court fixed a hearing on 25/10/2021. The applicant was absent. The notice of hearing was sent to her last updated address. There was no return of mail. This court deals with the leave application on paper.

22. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

23. The adjudicator had analysed her evidence in detail. There are critical inconsistencies which seriously undermined her credibility. I agree with the findings of the adjudicator. In fact, there was no injury caused to the applicant. There was no persecution. Her story is unconvincing.

24. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.

Conclusion

25. The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 10 February 2022, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was three weeks late with her intended appeal.  In her summons and supporting affirmation, she claimed that she did not receive the Leave Decision within the 14-day period.

12.  By the EOT Decision, the Deputy Judge considered that the applicant’s delay was substantial and that she failed to inform the Court her new address recorded in the summons filed on 10 February 2022.  Accordingly, she must bear the consequence of any problem in her mail. Further, the Deputy Jude also considered that her intended judicial review had no merit and refused to extend time for her intended appeal.

The Present Application

13.  By a summons filed on 20 April 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In her summons, she asserted that the Deputy Judge had erred in concluding that there was no failure to adhere to a high standard of fairness at common law by the Board.  She further claimed that the Deputy Judge failed to make sufficient enquiry before finalising the Leave Decision.

14.  Contrary to the directions made by the Registrar of Civil Appeals on 20 April 2022 and 23 May 2022, the applicant did not file any written submissions in support of her present reapplication.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  The applicant’s delay of three weeks was substantial.  She also failed to provide any reason, let alone good reason, for her delay.  Accordingly, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  In our view, the applicant’s intended appeal has no substance.  Her allegations are bare, vague and unsupported by specific particulars.  They do not constitute proper grounds of appeal.

19.  Further, as repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  Her allegations plainly fail.

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 20 April 2022 dismissed.