RE AKHTER MST SHARMIN

CAMP 68/2021

[2021] HKCA 1249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2461 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 KW Lung (“the Judge”) dated 29 July 2020[1] refusing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of her application.  She has also lodged a written submission on 24 May 2021 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 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”) dated 25 October 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 22 September 2017 rejecting her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 34.  She arrived in Hong Kong on 2 March 2016 and was permitted to remain to work as a domestic helper.  Her employment was terminated prematurely on 5 April 2016.  She overstayed and surrendered to the Immigration Department on 24 May 2016.  In July 2016, she raised a non-refoulement claim. 

6.  The applicant’s claim is based on her fear of being harmed or killed by enemies who are affiliated with the Awami League (“AL”) because her husband’s family are supporters of the rival political party, Bangladesh Nationalist Party.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 29 July 2020 at [5].  We will not repeat them.     

7.  By his decision dated 22 September 2017, the Director rejected the applicant’s claim on the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 12 June 2018.  By its decision dated 25 October 2018, the Board dismissed the appeal.  Primarily, the Board found that on the applicant’s evidence, the AL supporters were targeting her father-in-law and not her, and there was no real and personal risk of being subjected to torture, ill-treatment or harm.  The Board was of the view that, in any event, state protection and internal relocation were reasonably available, which would reduce or negate any risk of harm that the applicant may face.  The Board concluded that the claim failed on all the applicable grounds.

9.  On 5 November 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She put forward nine grounds for seeking relief as follows:

(1)  The Board erred in law in considering that the applicant had to experience torture in the past in order to establish substantial grounds for believing there was a risk of torture in the future.

(2)  The Board failed to carry out sufficient research into the updated and relevant country of origin information (“COI”).

(3)  The Board ignored relevant COI and took into account outdated and irrelevant COI.

(4)  The Board failed to evaluate and make a finding as to whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

(5)  The Board failed to analyse and assess whether state protection exists in Bangladesh by reference to the extended meaning of whether the state had exercised due diligence or sufficient due diligence.

(6)  The Board took into account and placed weight on irrelevant or incorrect considerations and unsupported facts or inferences, and failed to have regard to facts and inferences that are favourable to the applicant. 

(7)  The Board failed to call for psychological and psychiatric evaluations and reports.

(8)  The Board applied the incorrect standard of proof.

(9)  The failures of the lawyer assigned by Duty Lawyer Service resulted in a lack of or insufficient legal representation, and the applicant did not have a fair process.

10.  The applicant attended an oral hearing on 17 October 2019.  By his decision dated 29 July 2020, the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [13] to [19] of the Form CALL-1.  In gist, the Judge considered that the settled legal principles do not support the applicant’s complaint about lack of legal representation; what she said at the oral hearing contradicted her assertion that she did not understand the hearing bundle used at the appeal before the Board; there is no evidential basis for the applicant’s vague and general complaints about the Board’s use of COI; and the applicant was wrong in asserting that the assessment of the BOR 2 risk was made without going through a screening process.  The Judge concluded that the intended judicial review had no real prospect of success, and dismissed the application for leave.

11.  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 it was made. 

12.  By a summons filed on 5 October 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge P Li (“DHCJ Li”) heard the application on 1 December 2020.  By his decision handed down on 2 February 2021[6], he refused the application.  On 5 March 2021, the applicant filed the present summons to appeal against DHCJ Li’s decision.  This is not a correct step to take.  The proper procedure is to make a further application to this Court for extension of time to appeal the Judge’s decision of 29 July 2020.  We will treat the summons as a renewed application to extend the time to appeal against the Judge’s refusal of leave to apply for judicial review.

13.  In considering whether to extend time for appealing against a decision refusing 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. 

14.  When the applicant filed the 5 October 2020 summons, she was late by about three weeks[7].  She did not provide any explanation for the delay in the papers filed in the present appeal.  In the affirmation in support of the 5 October 2020 summons, the applicant said she only received the court’s decision from the landlord on 25 September 2020.  For reasons given at [13] to [16] of his decision, DHCJ Li rejected the explanation as being incredible. We see no ground to depart from his conclusion.    

15.  In the absence of satisfactory reason for the delay, the applicant has to show that her intended appeal enjoys a real prospect of success before the Court will exercise the discretion in her favour and grant an extension of time.    

16.  In assessing the merit of the intended appeal, the court 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].

17.  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.

18.  The applicant’s affirmation set out two grounds in support of the application, namely, (1) DHCJ Li was wrong in holding there was no state acquiescence or involvement; and (2) DHCJ Li failed to provide detailed reason in support of his decision.  We take it that the criticisms are directed against the Judge, and not DHCJ Li, since it is the Judge’s decision refusing her leave to apply for judicial review that she seeks to overturn.

19.  The written submission quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and argued that (1) high standard of fairness applied since the decision has the effect of finally disposing of the applicant’s claim making her liable to be removed; (2) the Board failed to scrutinize the Director’s decision; and (3) the decision maker is under a common law duty to act fairly, which is a constitutional duty.       

20.  For the following reasons, we are of the view that the grounds and arguments put forward by the applicant have no merits:

(1)  The first ground stated in the applicant’s affirmation is misplaced because the Judge did not deal with state acquiescence in his decision.

(2)  As to the second ground stated in the applicant’s affirmation, while we accept the Judge’s reasons for his decision are very brief and have not dealt specifically with all the grounds set out in the Form 86, we would not say that they are inadequate.  This is because there are overlapping in the applicant’s grounds in the Form 86, with some of them making vague and general assertions and having no apparent relevance.  We do not agree this ground of appeal is justified.

(3)  In respect of the arguments in the written submission, they are general assertions, with no explanation as to how the legal principles relate to the applicant’s case.  There are also no particulars to support the criticism that the Board failed to scrutinise the Director’s decision.        

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

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give 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 5 March 2021. 

[1] [2020] HKCFI 1737.

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

[3] 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.

[4] 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.

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

[6] [2021] HKCFI 223.

[7] The month of August, which is the summer vacation, is to be excluded in reckoning the 14-day period for appeal: see sections 29(2) and 31(2) of the High Court Ordinance, Cap. 4 and Order 64 rule 1(1) of the Rules of the High Court.  Hence the time for the applicant to appeal the Judge’s decision expired on 11 September 2020.