KHATUN SUMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 371/2022

[2023] HKCFI 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 371 OF 2022

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application by summons filed on 24 February 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 6 February 2023 (the “Order”) refusing her application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 March 2022 (the “Decision”).

THE LAW

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is four days out of time.

3.  In Jagg Singh v Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors.

DISCUSSION AND CONCLUSION

4.  The application is made four days out of time. The delay is not very substantial. Indulgence would usually be given if the applicant could demonstrate his or her intended appeal has good prospect of success, especially if he or she has a reasonable explanation for the delay. The Applicant gave no explanation for the albeit short delay.

5.  At the appeal hearing before the Board, the Board basically accepted the Applicant’s evidence. Despite that, it dismissed her appeal because it found on the basis of her evidence that her feared harm and risk are not well-founded and she could further avoid such harm and risk by relocating to other areas in Bangladesh.

6.  In her leave application before this Court, she advanced six grounds of application for leave to apply for judicial review. They revolve around procedural unfairness, irrationality in the Decision, and the Board’s finding of fact. As explained in Paragraph 16 of the Form CALL-1, the primary decision-makers in a claim for non-refoulement protection are the Director of Immigration and the Board. They alone assess the evidence and find facts including those relating to matters allegedly giving rise to non-refoulement claim. In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. This Court rejected her grounds challenging the Board’s finding of fact. Having rigorously examined the Board’s Decision with anxious scrutiny, this Court was unable to find any errors of law, procedural unfairness or irrationality in the Decision. Hence, it refused her leave application.

7.  The Applicant’s ground of intended appeal as stated in her Summons and supporting affirmation is that the Board did not consider her leave application properly, that she had severe problems in her home country and that she will be killed by her enemy, if she is returned to her home country. These grounds are directed at the Board’s finding of fact and not at this Court’s reasons for refusing her leave application. For reasons as explained in Paragraph 6 above, it is not permissible for an applicant to challenge the Board’s finding of fact by way of judicial review. And as the Applicant has not advanced any grounds for challenging this Court’s decision in finding there were no errors of law, procedural unfairness or irrationality in the Decision, the Applicant’s intended appeal has no prospect of success. It would be futile to grant her extension of time to appeal.

8.  In view of the above finding, it would not be necessary to consider prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed, though the prejudice is obvious.

9.  As the Applicant has no valid explanation for the delay and her intended appeal has no prospect of success, her application for extension of time to appeal is refused.