RE BEGUM JOSNA

CAMP 279/2021

[2021] HKCA 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 279 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1850 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 17 June 2020 refusing to give her leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of her application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) refusing her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 32.  She last arrived in Hong Kong on 30 May 2016 and was permitted to remain to work as a domestic helper.  On 15 October 2016, her employment was terminated prematurely, and she has since overstayed.  She was arrested by the police on 31 May 2017.  She later raised a non-refoulement claim based on fear of being harmed or killed by people of the Awami League because she is a supporter of the Bangladesh National Party.  The details of the applicant’s claim were set out in the Director’s decision at [9] and the Board’s decision at [15] to [98].  We will not repeat them. 

6.  By his decision dated 9 March 2018, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 19 July 2018, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 27 August 2018, the Board dismissed the appeal.  The Board found significant inconsistencies between the versions she gave in the first and second representations to the Director and her evidence before the Board was confusing.  The Board found the applicant an untruthful witness and had made up her claims in order to extend her stay in Hong Kong and to seek non-refoulement protection.  The Board concluded that the applicant failed to establish she faces a real risk of harm, and that she is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 5 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.      

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 17 June 2020[5], the Judge refused to give leave to apply for judicial review and gave his reasons in [12] to [16] as follows:

“12. The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. She said that her lawyer had explained the Director’s Decision to her. However, she had forgotten the Board’s Decision. The Court explained the Board’s Decisions to her.

13. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

14. 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.”

15. Those grounds above are her opinions without any evidence or particulars in support of them. They do not assist her application.

16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 2 July 2020.

11.  By a summons filed on 7 July 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and by his decision handed down on 15 July 2021[6] refused the application. 

12.  On 26 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by five days.  In her application for extension of time before the Judge, the applicant stated that she received the decision late and she had to seek help from a friend, so she was late in making an appeal.  We are prepared to accept her explanation in view of the relatively short delay and considering that she is not legally represented.           

15.  As for the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  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.

17.  In the present application, the applicant’s supporting affirmation set out the following grounds of application:

(1)  The decision of 15 July 2021 was irrational, and there were many “unacceptable and unexplainable grounds” to refuse her summons to extend the time for appealing.

(2)  She is a genuine non-refoulement claimant who faces dangerous problems and harassment and torture in Bangladesh, and has to flee her country to save her life.

(3)  If she had not run away she would certainly have been killed by her enemies who are still looking for her and her problems are increasingly life-threatening.

18.  The written submission made the following arguments:

(1)  The Judge was wrong in law in not applying the principle of irrationality to the Director’s and the Board’s decisions. 

(2)  The high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim rendering her liable to be removed. 

(3)  The Judge was wrong in law in not applying the principle of procedural unfairness to the decisions of the Director and the Board, which required them to give reasons for their decisions.

(4)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence to support her non-refoulement claim and her appeal.

(5)  The Board had relied on news the source of which is not officially recognised or is simply hearsay.

(6)  The applicant will face hardship if she were to return to her home country.

19.  In our view, the grounds and arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The complaints about the Judge’s decision refusing to extend time to appeal are bare, general statements and, in any event, are misplaced as the applicant has now made a renewed application to this Court.  In view of the Board’s rejection of the factual basis of her claim based on adverse finding of credibility, the applicant’s assertions in the affirmation that she is at risks of harm and danger in Bangladesh are hardly sufficient to persuade this Court to disturb the Judge’s decision. 

20.  Further, although the written submission referred to irrationality, high standard of fairness and procedural unfairness, they are bare general statements with no details or particulars. There is also no basis for the complaint that the Board failed to give reasons for its decision, or that it did not afford the applicant an opportunity to arrange evidence to support her claim and appeal.  The complaint about reliance on unofficial news is entirely irrelevant.

21.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The intended judicial review has no reasonable prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal to leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 26 July 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2020] HKCFI 1210.

[6] [2021] HKCFI 1772.