RE KHATUN FATEMA

CAMP 67/2022

[2022] HKCA 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1617 OF 2019)

__________________________

__________________________

________________

JUDGMENT

________________

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 P Li (“the Judge”) dated 20 May 2021[1] refusing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission to support her application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in this application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Bangladesh aged 34. She came to Hong Kong in October 2015 to work as domestic helper. When her employment contract was prematurely terminated on 17 November 2015, she did not depart and overstayed. On 31 March 2016, she surrendered to the Immigration Department. She later raised a non-refoulement claim based on her fear of being harmed or killed by her ex-husband (“R”), who is a member of the Awami League (“AL”) and a gangster. In gist, she was pregnant after being raped by R. He married her and, after the baby was born, sold her to a brothel. She managed to escape. When R knew about it, he assaulted her badly, and threatened to kill her if she refused to work as a prostitute. The applicant went to stay with her mother, with whose help, she came to Hong Kong to work as a domestic helper. The details of the applicant’s claim were set out in the decision of the Director at [6] and the Board’s decision at [7] to [22]. We will not repeat them.

5.  By his decision dated 22 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board. A hearing was held on 27 February 2019. By its decision dated 6 June 2019, the Board dismissed the appeal. The Board found the problem between the applicant and her husband to be a case of domestic violence, unrelated to politics, and the injuries sustained by the applicant did not meet the minimum level of severity. The Board considered that the applicant’s fear of harm was unlikely to materialise, having regard to the fact that R took no action during the two years when the applicant stayed with her mother and the evidence showed that R did not have the intention to carry out his threat. The Board also considered that any risk of harm would be reduced or negated by the availability of state protection, and concluded that the claim failed on all applicable grounds.

7.  On 13 June 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. She had not put forward any specific grounds for seeking relief.

8.  The Judge heard the application at a hearing on 23 February 2021. The Judge refused to give leave to apply for judicial review for the reasons set out in [20] to [25] of the Form CALL-1 dated 20 May 2021. In summary, the Judge noted that assessment of evidence and finding of fact are matters for the Board. The Judge considered that the Board had analysed the applicant’s evidence in detail, and there was no discernible basis to interfere with the Board’s findings. The Judge held that there was no reasonably arguable basis to challenge the Board’s decision in the absence of any error of law, irrationality or procedural unfairness, and concluded that the intended judicial review had no reasonable prospect of success.

9.  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 decision within 14 days after it was made. The time for the applicant to appeal the Judge’s decision expired on 3 June 2021.

10.  By a summons filed on 8 June 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers. By his decision handed down on 22 December 2021[6], the Judge refused the application.

11.  On 23 February 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of 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.

13.  The applicant was five days late when she filed the application for extension of time in the Court of First Instance. She explained in the application before the Judge that she only received the letter from the Court on 7 June 2021. Like the Judge, we would focus on the merits of the intended appeal, given the relatively minor delay.

14.  In assessing 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].

15.  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.

16.  The applicant did not provide any ground in support of the intended appeal in either the summons or the affirmation. She only stated in the affirmation that the case was very important to her safety.

17.  In her written submission, the applicant gave an outline of her claim. She complained that the Board did not give her time, acted as her opponent, and made his decision without regard to the law, and the Judge was wrong in refusing to give her leave to apply for judicial review.

18.  The complaints raised by the applicant in the written submission were not put forward in the Form 86 or the accompanying affirmation. As a matter of procedure, it is not open to the applicant to raise new grounds on appeal, especially when the complaints she now seeks to raise are fact sensitive.

19.  Further, the applicant has not provided any particulars or elaborations of her complaints, such as in what way the Board had acted as her opponent or why it is said that the Board’s decision had disregarded the law.

20.  In the present case, the Board found, on the basis of the applicant’s claim and the available evidence, that the applicant’s fear was unlikely to materialise. Assessment of credibility, country condition and risks of harm is a matter for the Director and the Board, who are the primary decision makers. It is not the role of the Court in a judicial review to assess the country condition, the credibility of the claim or the risk of harm that an applicant faces. As the applicant has not been able to demonstrate that the decision makers had committed errors of law, acted irrationally or there was procedural irregularity in the decision-making process, the Court has no basis to judicially review their decisions.

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

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 23 February 2022.