RE FARIDA BEGUM

CAMP 208/2023, [2026] HKCA 1196

On appeal from [2023] HKCFI 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 208 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 787/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 30 March 2023[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 March 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 22 November 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of her claim and the Board’s reasons in reaching the Board’s Decision have been set out therein and summarised by the Judge in the Leave Decision at [1]-[5], which will not be repeated. 

3.  The applicant did not request for an oral hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [13]-[19] of the Leave Decision.  

4.  By a decision dated 1 June 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order were sent by post to the applicant at her last known address on 30 March 2023, which were not returned undelivered.

6.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

8.  By a Summons filed on 2 June 2023, the applicant renewed her application for an extension of time to appeal before this court. 

9.  Notwithstanding that her two daughters (who were the 2^nd and 3^rd applicants before the Board, whose appeals were also determined and dismissed by the Board’s Decision) did not apply for leave to apply for judicial review in the court below (and thus were not parties to the Decision and are not parties in the present application), the applicant by the Summons also seeks to join her daughters to the present application and/or her intended appeal.

10.  In her supporting affirmation, the applicant repeated the background to her claim and emphasised that “all kinds of problem” will befall her and her daughters should leave not be granted to her.

11.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged her submissions late (by almost 1 year).  

12.  In her written submissions lodged on 14 May 2024, the applicant referred, inter alia, to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.    

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

14.  The Leave Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant had notice and knowledge of the Judge’s order and the contents of the Leave Decision in the period within which she was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with her. 

15.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has she explained how and when she had come to learn of the contents of the Leave Decision.

16.  We havenonetheless proceeded to consider the merits of the intended appeal.

17.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal 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 were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could 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.  

18.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.

19.  In the present case, the Board found that the applicant’s claimed fear of harm was not made out on the evidence, as her disputes with her moneylenders were private matters without the involvement of the state.  In any event, the Board found that viable options of internal relocation were available to the applicant.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [8]-[19].  We see no basis to interfere.  

20.  Accordingly, the applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

21.  Moreover, we do not see any basis for the applicant’s daughters to be joined as parties to the present application.  They did not themselves apply for leave in the court below and thus are not parties to these judicial review proceedings nor to the present application. 

22.  Finally, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the consideration of her leave application by the Judge and/or in the processing of her non-refoulement claim.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 2 June 2023 is accordingly dismissed.