BEGUM FARHANA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 173 /2021

[2022] HKCA 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2087 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 18 September 2020, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1] (“the Judge’s Decision”).

2.  On 8 October 2020, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal.  Thus, the time for filing her appeal ended on 2 October 2020.  She was 6 days out of time.

3.  On 30 March 2021, the judge refused to grant extension of time to appeal against the Judge’s Decision as, while the delay was insignificant, the applicant failed to show that she had any prospect of success in her intended appeal^[2].

4.  On 18 May 2021, the applicant filed the present application with the Court of Appeal seeking to renew her application to appeal the Judge’s Decision out of time. 

5.  The applicant is a national of Bangladesh, 34 years old.  She came to Hong Kong as a foreign domestic helper on 26 August 2013.  Her employment contract was terminated prematurely and she did not depart within the time limit.  On 22 September 2017, she was arrested by an immigration officer.  On 14 February 2018, the Immigration Department received her application for non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the local supporters of a rival political party, the Awami League (“AL”), in her home village.

6.  By a Notice of Decision dated 30 May 2018 (“the Director’s Decision”), the Director rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4], persecution risk^[5] and BOR 2 risk^[6]. 

7.  The applicant appealed against the Director’s Decision to the Board. The Board conducted a hearing on 14 September 2018, during which the applicant answered inquiries from the Board.  The applicant confirmed before the Board that neither Ms Rokeya who was the rival to her mother in an election nor her AL followers had assaulted her.  The Board found that she had never suffered any physical harm and, insofar as her alleged mental stress was concerned, there was no medical evidence in support.  Further, there was no evidence of any state involvement.  The Board also found that internal relocation was available to the applicant.  Thus, the Board rejected her claim on the ground of torture risk.  For the same reasons, the Board also rejected her claim on the remaining grounds.  On a separate basis, the Board also rejected her claim as her version of events was unreliable.  Therefore, the Board concluded that the applicant has not made out a case and dismissed the appeal on 28 September 2018 (“the Board’s Decision”).

The Judge’s Decision

8.  On 2 October 2018, the applicant applied for leave to bring a judicial review against the Director’s Decision and the Board’s Decision.  She advanced several grounds of review which were summarized by the judge at §9 of the Judge’s Decision.  After reviewing the Board’s Decision in light of the applicant’s grounds of review, the judge refused the applicant’s leave application.^[7]

9.  On 8 October 2020, the applicant took out a summons seeking to appeal the Judge’s Decision out of time.  By a decision dated 30 March 2021, the judge refused to accept her explanation for delay and held that, while it was only a delay of 6 days and not significant, the applicant failed to prove that her intended appeal had any prospect of success.  Thus, the judge refused to extend time.

The renewed application to Court of Appeal

10.  On 18 May 2021, the applicant sought to renew her application for extension of time before the Court of Appeal.  In her summons, she repeated that she did not receive the Judge’s Decision on time.  In her supporting affirmation filed on the same date, the applicant stated that the Judge’s Decision was lost in the post and she only got the said decision after searching the court file.

11.  In her written submissions of 7 July 2021, she advanced two grounds of appeal that may be summarized as follows:

(1)  The Board failed to adhere to the principle of high standard of fairness laid down in ST v Director of Immigration [2014] 4 HKLRD 277^[8] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289;

(2)  The Board failed to honor its duty to act fairly as required by The Council of Civil Services Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217.

Analysis and disposition

12.  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.

13.  Even though a delay of 6 days might not be considered significant, we are not satisfied with the applicant’s explanation. Before the judge, she had explained that her landlord only gave her the Judge’s Decision on 6 October 2020 and by then she was already late in lodging her appeal.  However, in her supporting affirmation filed before this court, her explanation was that she had never received the Judge’s Decision by mail and she only found out about that decision when she searched the court file.  The inconsistency in her explanations greatly undermined the reliability of her assertions.  In any event, these remain bare assertions without any documentary proof.  We reject her explanations. 

14.  Even if the court is minded to accept her explanation in the present case in view of the short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[9].

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an 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.

17.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  The two grounds of appeal put forward by the applicant are merely iterations of general principles of law without identifying any errors in the Judge’s Decision.  They are also regurgitations of the arguments rejected by the judge. 

19.  The judge explained at §§10 to 14 of his decision why the applicant failed in these grounds of review and affirmed the Board’s Decision as he found that the Board had applied high standards of fairness in its decision.  The applicant fails to identify any errors in the above reasons.  Thus, there is no viable ground of appeal against the Judge’s Decision. 

20.  For all these reasons, there is no reasonable prospect of success in the applicant’s intended appeal.  It will be futile to grant her an extension of time.  We therefore dismiss the applicant’s summons for extension of time to appeal filed on 18 May 2021.