RE AKHTER MST SHARMIN

HCAL 2461/2018

[2021] HKCFI 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2461 OF 2018

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D E C I S I O N

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1.  The applicant is from Bangladesh. She was a domestic helper in Hong Kong from 2/3/2016 to 5/4/2016. Her contract was terminated pre-maturely. She surrendered to the Immigration Department on 24/5/2016. She filed the non-refoulement claim in this case on 14/7/2016.

2.  The Director rejected her claim on 22/9/2017.  The TCAB refused her appeal on 25/10/2018.  The adjudicator concluded that the applicant was not a target of the attack by the Awami League supporters. She did not need non-refoulement protection. In any event, she could relocate in Bangladesh.

3.  On 5/11/2018, the applicant applied for leave for judicial review of the TCAB decision.  She disagreed with the decision and set out several grounds including the lack of legal representation and the TCAB used outdated material.[1]

4.  In the interim, she defaulted a hearing scheduled on 25/4/2019, her leave application was dismissed for want of prosecution by Deputy Judge Lung on 25/4/2019.  She issued a summons (dated 26/6/2019) to set aside the order. In her affirmation in support, she claimed that she only received the court order (dated 25/4/2019) in the letter box on 24/6/2019. It was out of time for appeal. She said in paragraph 6 of her affirmation,

“However, I have since taken legal advice and, I understand that there is a good grounds (sic) of appeal that was not necessarily considered at the stage of applying for the leave for Judicial Review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings…”

5.  The application to set aside Deputy Judge Lung’s order dated 25/4/2019 was scheduled to 1/8/2019. She defaulted the hearing again, her application to set aside order was dismissed for want of prosecution. She issued another summons (dated 19/8/2019) to set aside the order. In her affirmation in support, she claimed that she only received the court order (dated 1/8/2019) on 15/8/2019 from her landlord. She repeated the same paragraph 6 above in her affirmation.

6.  The leave application was re-scheduled to 17/10/2019. She attended the hearing and her leave application was refused by Deputy Judge Lung in the decision dated 29/7/2020.

7.  Deputy Judge Lung pointed out that the applicant was not entitled to legal representation at every stage of the proceedings. Lack of language assistance was not a ground for judicial review.[2] The BOR 2 claim had been considered by the Director. In the circumstances, Deputy Judge Lung rejected all grounds. The judge concluded that the applicant failed to show that there was any reasonable prospect of success. Leave was refused by a decision dated 29/7/2020. [3]

8.  The applicant filed a summons on 5/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung [4]. She was about 7 weeks out of time.

9.  In her affirmation in support of the application for extension of time, the applicant submitted that she only received the decision of Deputy Judge Lung on 25/9/2020 from her landlord. She repeated the same paragraph 6 set out above.[5] She stressed that her life was getting more and more life threatening in Bangladesh. She alleged that the Director and the TCAB had not properly investigated the situation. She asked for a hearing.

10.  A hearing was scheduled on 1/12/2020. The applicant confirmed that the address used by the court was correct.[6] She submitted that she did not know the reason for the non-delivery of the decision. She thought it might be some problem in the mail or that the landlord might have kept the mail. She did not ask the staff when she reported to the Immigration Department. She mentioned again that she had not received letters from the court in April and June 2019.[7]

11.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this 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.[8]

12.  The applicant is out of time for about 7 weeks. It is substantial delay.

13.  She said in her affirmation that she received the judgment from the landlord on 25/9/2020. However, in court she said she did not know the reason. She had checked the letter box. It could be problems in the mail or the letter was kept by the landlord.

14.  Similar incidents had happened between April and August 2019 when she allegedly failed to receive the notice for scheduled hearings. In my view, she must be more vigilant after those incidents. Nevertheless, she just waited passively after the hearing on 17/10/2019 for almost a year for the result. She did not ask the landlord. She did not approach the court.

15.  She used the identical reason—she left out a good ground of appeal from the legal advice—in her affirmations in June 2019, August 2019 and October 2020.[9] This reason appears perfunctory for the first two hearings as she was absent from the leave application. Had she really consulted a lawyer earlier on, the good ground must have already been presented to the court in the leave application in October 2019. In fact, she could not produce anything which supported her claim that there was relevant legal advice.

16.  In my view, she is making up excuses to mislead this court. I do not find her credible. I reject her explanation for the late application.

17.  I have carefully considered the reasons given by Deputy Judge Lung. I agree with his judgment. The applicant fails to point out any error in the judgment. The intended appeal was of no merit.

18.  In the circumstances, I dismiss her application. I refuse extension of time for appeal.