RE KHANAM MASUMA

CAMP 285/2019

[2020] HKCA 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 285 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 523 of 2018)

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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 10 May 2019, by way of a decision set out in Form CALL-1 ([2019] HKCFI 506), 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 the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 23 January 2018 (“the Board’s Decision”).

2.  In the Board’s Decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated respectively 9 September 2016 (“the Director’s First Decision”) and 24 August 2017 (“the Director’s Second Decision”) rejecting the applicants’ non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  On 16 August 2019, the applicants sought extension of time to appeal the decision of the Deputy Judge (“the Deputy Judge’s Decision”).  According to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the 14-day time period for the applicants to file the summons expired on 24 May 2019.  The applicants were around two months out of time.

5.  On 4 November 2019, the Deputy Judge refused to grant extension of time to the applicants (“the Deputy Judge’s Extension of Time Decision”).

6.  By a summons dated 12 November 2019, the applicants renewed their application before this Court.

Background

7.  The 1^st applicant is a national of Bangladesh.  She entered Hong Kong on 21 June 2013 as a domestic helper and was permitted to stay until 21 June 2015 or two weeks after termination of contract, whichever was earlier.  Her employment contract was terminated prematurely on 6 February 2014 and she was permitted to remain as a visitor until 26 March 2014 upon her extension of stay application.  She overstayed and surrendered herself to the Immigration Department on 23 July 2014.  She made a non-refoulement claim on 25 June 2014.  On 21 June 2015, she gave birth to the 2^nd applicant.  The 1^st applicant then raised a joint non-refoulement claim on behalf of the 2^nd applicant on 28 August 2015.

8.  The 1^st applicant’s claim was based on the fear that, if she returned to Bangladesh, she would be ill-treated by her creditor and also by her ex-husband.  She also feared that, together with the 2^nd applicant, they would not be accepted by the family members and that it would be difficult for a divorced woman with a child to live in other areas in Bangladesh.  The factual background was summarized at paragraphs 12 - 13 of the Director’s First Decision and paragraph 22 of the Board’s Decision.

9.  Briefly stated, in June 2013, the 1^st applicant borrowed money from Rahman to pay for the employment agency’s fee for her to work as a domestic helper in Hong Kong.  Rahman was a supporter of Bangladesh Nationalist Party (“BNP”).  When she lost her job in February 2014 in Hong Kong, Rahman chased her with death threats for repayment of the loan. The 1^st applicant also claimed that Rahman went to threaten her brother in their home village.  In 2015, when the 1^st applicant was pregnant, she did not disclose her pregnancy to her family as her family would not be able to accept.  In the 2^nd applicant’s non-refoulement claim form, the 1^st applicant claimed on her behalf that Rahman threatened to kidnap her two step sisters (children of the 1^st applicant and the 1^st applicant’s ex-husband).

The Director’s Decisions and the Board’s Decision

10.  By way of the Director’s Decisions, the Director assessed and dismissed the applicants’ claim.  The Director’s First Decision assessed the BOR 3 risk[1], persecution risk[2] and torture risk[3] whilst the Director’s Second Decision covered the BOR 2 risk[4].

11.  The applicants lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 28 November 2017, where the 1^st applicant answered the Board’s questions.  The Board found that the 2^nd applicant’s claim was basically the 1^st applicant’s because the 2^nd applicant was an infant when her claim was filed.  The Board proceeded to consider the 1^st applicant’s claim.  It was the 1^st applicant’s own evidence that Rahman ceased to threaten her brother and her family after her brother reported the threat to the police.  Also, Rahman did not inflict any harm on the 1^st applicant except making a threatening phone call.  Further, she initially came to Hong Kong for taking up employment but not for seeking protections (paragraph 25 of the Board’s Decision).  Alternatively, the Board found that state protection and internal relocation were available to the applicants after assessing the country of origin information (paragraphs 29 - 31, 48 - 50 of the Board’s Decision).  As a result, the Board dismissed the applicants’ appeal.

The Deputy Judge’s Decision

12.  On 29 March 2018, by way of a Form 86, the applicants sought to challenge the Board’s Decision by way of judicial review. In the supporting affirmation filed on the same date, the 1^st applicant advanced the grounds of review that she received the hearing bundles from the Director late; that due to her language barrier she could not understand the hearing bundles properly; that she was confused at the oral hearing before the Board; that the Board failed to meet the greater care and duty because it failed to make proper arrangements in relation to the hearing bundles; and that the Board relied on outdated and hearsay source of news.  The 1^st applicant also filed a 2^nd affirmation that she would act for the 2^nd applicant in these proceedings.

13.  After considering the documents, the Deputy Judge refused to grant leave to the applicants to apply for judicial review.  He set out his reasons at paragraphs 14 - 19 of the Deputy Judge’s Decision:

“14. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision or that it was unreasonable or irrational, or in what way did the Board fetter its discretion in refusing their appeal, or how the adjudicator acted procedurally unfair in dealing with their appeal, or what COI relied on by the Board were outdated or hearsay or unofficially recognized. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and in the absence of any error in the decision being clearly and properly identified, I do not find any basis or merits in any of these complaints of the applicants, or that any of them are reasonably arguable in their intended challenge.

15. The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

16. Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF were completed on their own instructions with legal assistance, and that at their oral hearing A1 never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal. As such I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17. 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.

18. 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.

19. 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

14.  On 16 August 2019, after two months, the applicants took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  The 1^st applicant in her supporting affirmation explained that although she received the Deputy Judge’s Decision on time, she did not understand it due to the lack of language assistance and she did not act on it because she did not understand the law.

15.  By way of the Deputy Judge’s Extension of Time Decision, the Deputy Judge dismissed the applicants’ summons.  He held that the delay was significant and that the 1^st applicant had failed to provide a good reason for her delay especially when she reported to the Immigration Department every week or every other week.  In any event, 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

16.  On 12 November 2019, the applicants renewed their application for extension of time to appeal the Deputy Judge’s Decision before this Court.  The 1^st applicant again repeated that she did not have language and legal assistance and thus her application was delayed. However, she did not provide any intended grounds of appeal against the Deputy Judge’s Decision.

Legal principles

17.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  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.

18.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

19.  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) 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 Rules of the High Court.

Discussion

20.  In our view, the applicants’ application for extension of time is without any merit.

21.  A delay of more than two months is substantial in the context of the 14-day statutory time limit.  The 1^st applicant’s explanation that she did not understand English or the law in Hong Kong was not a good reason for the delay.  As pointed out by the Deputy Judge, the 1^st applicant reported to the Immigration Department every week or every other week.  She should have acted promptly when she received the Deputy Judge’s Decision.  Further, ignorant of law is also not a good reason for delay: see Re Hassan Ali [2020] HKCA 477, per Yeung VP at [17].

22.  With the substantial and inexcusable delay, the applicant must satisfy the court that the intended appeal has real prospect of success before extension of time is granted: Re Kasirah [2020] HKCA 468, per Yeung VP at [17] - [18]; Caramat Virginia Lobeban & Ors v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 276, per Kwan VP at [12] - [14]; Re Mohammed Roni Khan [2020] HKCA 66, per Chu JA, at [14].

23.  However, the applicants failed to put forward any intended grounds of appeal against the Deputy Judge’s Decision and there is therefore no basis for this Court to intervene with the Deputy Judge’s Decision.  In any event, after reviewing the Deputy Judge’s Decision, we are of the view that the Deputy Judge was right in refusing to grant leave for the applicants to apply for judicial review.

24.  Accordingly, we dismiss the applicants’ summons of 12 November 2019.