RE ALAYA AND ANOTHER

CAMP 74/2020

[2021] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 865 OF 2017)

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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):

Introduction

1.  On 13 February 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 358), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 12 October 2017 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 25 November 2016 (“the Director’s Decision”).

2.  Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”), the 14-day time period for the applicants to appeal the Deputy Judge’s Decision expired on 27 February 2019.  On 11 October 2019, the applicants sought extension of time to appeal the Deputy Judge’s Decision.  They were about eight months out of time.

3.  On 18 June 2020, the Deputy Judge refused to grant extension of time to the applicants (“the Extension of Time Decision”).

4.  By a summons dated 30 June 2020 (“the CA Summons”), the applicants renewed their application to appeal out of time before this Court.  Directions were given by the Registrar of Civil Appeals to the applicants on 29 July 2020 concerning the conduct of the application.  Paragraph 7 of those directions stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers.  Under Order 59, rule 14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  After considering the available documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The 1^st applicant and 2^nd applicant are mother and daughter of Bangladesh origin.  The 1^st applicant came to Hong Kong as a domestic helper on 12 November 2013 but overstayed after her contract was terminated.  She was arrested by the police in Hong Kong on 16 September 2014 and raised her non-refoulement claim on 19 September 2014. Subsequently on 13 October 2015, she gave birth to the 2^nd applicant in Hong Kong and made a non-refoulement claim on 25 January 2016 on her daughter’s behalf. In the 2^nd applicant’s non-refoulement claim form, it was stated that the 2^nd applicant’s claim was dependant on the 1^st applicant’s claim.

6.  They were legally represented before the Director, but not before the Board.  In the appeal before the Board, the 1^st applicant acted for the 2^nd applicant.

7.  The 1^st applicant’s claim was based on the fear that if she and her daughter returned to Bangladesh, they would be harmed or killed by the members of Awami League (“AL”) who had raped the 1^st applicant because she refused to join them.  She also claimed the fear of being harmed by her creditors and guarantors due to her failure to repay the loans to the local bank.  The factual background was summarized at paragraph 8 of the Director’s Decision and paragraphs 9 - 17 of the Board’s Decision.

8.  The 1^st applicant claimed to have been an active supporter of Bangladesh Nationalist Party (“BNP”) since 2003.  Despite repeated demands from the AL, she refused to join them.  In 2013, she claimed to have been gang raped by members of AL followed by an unsuccessful attempt of suicide.  A month after the incident, the 1^st applicant was again approached by the perpetrators.  Though they did not do anything at that time, the 1^st applicant decided to come to Hong Kong as a domestic helper to avoid them.  To fund her agency fee, she borrowed money from a bank with two friends acting as her guarantors.  However, she lost her job and was unable to repay the loans.  While she was in Hong Kong, she began a relationship with a Bangladeshi man, the father of the 2^nd applicant, who also made a non-refoulement claim.

The Director’s Decision and the Board’s Decision

9.  By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non-refoulement claims on the BOR 3 risk[1], persecution risk[2], torture risk[3] and the BOR 2 risk[4].  The Director assessed the claim of the 2^nd applicant as part of the 1^st applicant’s claim and did not process the 2^nd applicant’s claim separately.

10.  The applicants lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 26 June 2017, during which the 1^st applicant answered the Board’s questions with the assistance of an interpreter.  During the hearing, the 1^st applicant clarified several aspects of her claim, including that of the 2^nd applicant.  She stated that she had now married her boyfriend and the 2^nd applicant was no longer an illegitimate child and that if they were to return to Bangladesh, her husband would be able to accompany them (paragraph 21 of the Board’s Decision).

11.  After hearing the 1^st applicant, and considering the applicants’ evidence in the non-refoulement claim forms, the Board attached credence to the 1^st applicant’s versions of several events, such as her political affiliation, the rape incident, her subsequent encounter with the perpetrators and her decision to come to Hong Kong.  However, the Board found her descriptions about the consequences of defaulting the loan vague and implausible.  Further, the Board found that the AL no longer had interest in the 1^st applicant and her risk of harm was therefore low (paragraphs 33 - 48 of the Board’s Decision).  Alternatively, the Board considered the sufficiency of protection for the applicants in local area and the possibility of internal relocation.  It found that the applicants could not receive sufficient protection in the local area (paragraphs 49 - 57 of the Board’s Decision).  The Board then proceeded to determine whether the applicants could safely and reasonably relocate to a different part of Bangladesh.  The Board first considered the 1^st applicant’s evidence that she was now married and the illegitimacy status of the 2^nd applicant no longer existed and concluded that there was no longer a risk for the 1^st applicant as a single mother and for the 2^nd applicant as an illegitimate child (paragraphs 58 - 63 of the Board’s Decision).  The Board then found that internal relocation was available to the applicants after considering the following factors: the 1^st applicant used to live safely in other areas; she now had the support of her husband; she also had the requisite skills to relocate and there was no evidence suggesting that the 2^nd applicant would not be able to have access to education or other relevant civil rights or lead a normal life as other children in Bangladesh (paragraphs 64 - 73 of the Board’s Decision).  Thus, the Board dismissed their appeal.

The Deputy Judge’s Decision

12.  On 10 November 2017, by way of a Form 86, the applicants sought to challenge the Board’s Decision and the Director’s Decision by way of judicial review.  They did not request an oral hearing nor did they advance any grounds of review.  After considering the documents, the Deputy Judge refused to grant leave to them to apply for judicial review.  He set out his reasons at paragraphs 14 - 18 of the Deputy Judge’s Decision:

“14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board who 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 or procedural unfairness or irrationality in their decisions being clearly and properly 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.

15. The adjudicator having heard A1 in evidence accepted her claim in relation to the risk of harm from the AL people as plausible, but went on to carefully and meticulously set out her findings and reasons in paragraphs 33 - 73 of the Board’s decision in the consideration of her claim in which the adjudicator correctly applied the relevant principles to arrive at the conclusion, and having considered the Board’s decision with rigorous examination, I am unable to find any fault in those findings or reasoning at all.

16. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having proceeded to consider 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 applicants’ claim.

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

Application for extension of time

13.  On 11 October 2019, the applicants took out the summons to seek extension of time to appeal the Deputy Judge’s Decision.  In the summons, the 1^st applicant explained that the delay was due to language barrier but she did not advance any grounds of appeal.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicants’ application.  He heard the applicants on 20 December 2019 and considered their explanations for the delay.  He found that the delay was substantial and refused to accept their explanation as the lack of language assistance was not per se a good reason for such a serious delay.  More importantly, the applicants did not advance any grounds of appeal.  Thus, the Deputy Judge concluded that it would be futile to extend time as there was no prospect of success in the intended appeal.

Renewed application for extension of time to this Court

14.  On 30 June 2020, the applicants renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons, the 1^st applicant stated that no one helped her with the Deputy Judge’s order as she could not read and write English.  She did not know the possibility of lodging an appeal.  As to the reason for delay, she explained that the 2^nd applicant was admitted to Queen Elizabeth Hospital (“QEH”), which resulted in the delay for filing the appeal against the Deputy Judge’s Decision.  She repeated the arguments again in her supporting affirmation.  In the written submissions of 18 August 2020, the applicants advanced several grounds of review against the Board’s Decision which could be categorised as procedural impropriety / unfairness and irrationality.  They also challenged that the Deputy Judge did not review the Board’s Decision under “rigorous examination and anxious scrutiny”[5] and failed to provide sufficient reasons[6].

Legal principles

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 the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the RHC.

Discussion

18.  A delay of almost eight months is significant especially in the context of a statutory limit of 14 days.  As rightly pointed out by the Deputy Judge, language problem is not per se a good reason for such substantial dilatoriness.  In particular, the applicants were able to file the Form 86 and supporting affirmation in English which showed that they had access to language assistance of their own if deemed necessary.  This is therefore not a good reason for the delay.  The 1^st applicant’s claimed ignorance of law is simply not an excuse for delay: Re Gurung Min Bahadur [2018] HKCA 226 at [10].  The appointment slips from the two medical clinics and the letter issued by QEH attached to the written submissions in relation to the 2^nd applicant also do not support their explanation for delay.  These medical records are dated 26 June 2020, 4 September 2020 and 9 October 2020 respectively which are not relevant to the applicants’ extension of time application before the Deputy Judge back in 2019.  For these reasons, we do not accept the applicants’ explanation for such a substantial delay.  We now turn to consider the merits of the intended appeal.

19.  We shall first deal with the 1^st applicant’s application before considering the position of the 2^nd applicant who is a minor.

20.  Insofar as the 1^st applicant’s complaint against the Deputy Judge is concerned, her arguments that the Deputy Judge failed to review the Board’s Decision under rigorous examination and anxious scrutiny or that he failed to provide reasons are bare and general assertions without sufficient particularities to point out any errors in the Deputy Judge’s Decision.  As to the rest of the grounds, they are all against the Board’s Decision.  These are not valid grounds of appeal.

21.  Thus, the applicants failed to advance any viable grounds of appeal in support of this application.  It would be futile to extend time.  We will dismiss the 1^st applicant’s application to appeal out of time.

22.  It is, however, necessary for us to separately consider the 2^nd applicant’s position as she is a minor (born on 13 October 2015) and has not been legally represented in these proceedings as required under Order 80, rule 2 of the RHC.  This raises the question that, in the case where the parent’s applications for leave to judicially review the Board’s decision has been found to be without merit and should be dismissed, what is the court’s approach to the minor’s leave application to apply for judicial review when he is not legally represented in the court proceedings.

23.  This issue has recently been considered by this Court (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA).  In summary, the Court has laid down the following approach.

24.  First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf.  In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant.

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations.

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

25.  Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulment claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See: Fabio Arlyn Timogan at [47] - [54].

26.  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials[7], with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50] - [53], and [56] - [57].

27.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 of the RHC as a mere irregularity: Re Jassal Tajinder Kumar [2021] HKCA 124, per G Lam J at [27] and the authorities cited therein.  See also the discussion in Fabio Arlyn Timogan at [57].

28.  Bearing this approach in mind, for the following reasons, we are of the view that the 2^nd applicant’s non-refoulement claim in the present case had been properly dealt with by the Board.

29.  As mentioned earlier, the 2^nd applicant’s claim was premised fundamentally on that of the 1^st applicant that they would be harmed or killed by the AL members and the 1^st applicant’s creditors and guarantors.  Apart from that, the only child-specific claim raised by the 1^st applicant was the illegitimate status of the 2^nd applicant.  However, this was no longer an issue when the Board heard their application as the 1^st applicant was married to her boyfriend by then.

30.  The Board had considered extensively the evidence filed before it and the oral evidence given by the 1^st applicant at the hearing.  In our view, the Board had adhered to the high standard of fairness in dismissing the 1^st applicant’s claim and concluding that it was safe for the applicants to return to Bangladesh.  In this respect, it is pertinent to note that the 2^nd applicant was born in Hong Kong.  There is no evidence that she has been to Bangladesh or would subject to any risk of harm other than those rejected by the Board.  We have looked at the evidence filed in this application and unlike the case in Fabio Arlyn Timogan, we do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.  Further, in assessing the possibility of internal relocation, the Board paid due regards to the 2^nd applicant’s personal situation including the prospect of her access to education, her enjoyment of relevant civil rights, and her capacity to live a normal life as a child (paragraph 72 of the Board’s Decision).

31.  In the premises, we also find that the 2^nd applicant’s intended judicial review has no arguable merit and so is the intended appeal against the Deputy Judge’s Decision.  We will therefore treat the absence of legal representation for the 2^nd applicant in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.

32.  For these reasons, it is also futile to extend time for her to appeal and we refuse to extend time to the 2^nd applicant to appeal the Deputy Judge’s Decision.

33.  We will therefore dismiss the CA Summons.

34.  Since the present application is totally without merit, we further make an order under Order 59, rule 2A(8) of the RHC that the applicant may not request our determination to be reconsidered at an oral hearing.