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CAMP 52/2022
[2022] HKCA 857
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 52 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 1634/2019)
________________________
________________________
| Before: |
Hon Chu JA and Barma JA in Court |
| Date of Judgment: |
23 June 2022 |
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 20 May 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 June 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 30 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of Bangladesh. She entered Hong Kong on 18 July 2014 and had overstayed since 22 October 2014. She surrendered herself to the Immigration Department on 28 October 2014. The applicant thereafter lodged a non-refoulement claim on 8 January 2015.
3. The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League. The details of the applicant’s claim have been summarised by the Judge at [2] to [10] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 30 January 2018, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 28 January 2019, the Board dismissed the appeal on 11 June 2019. The Board’s Decision covered all four grounds for non-refoulement protection. The Board concluded that the applicant was not a credible witness, and it was unable to attach any weight to her evidence.
The Judge’s decision
6. The applicant filed a Form 86 on 14 June 2019 seeking to judicially review the Board’s Decision. In her supporting affirmation, she set out her proposed grounds of appeal, inter alia:
“Director of Immigration or Adjudicator of TCAB refused my claim illegally. They do not purly (sic) screened my claim. Duty Lawyer Service is one kind of eye wash. Screening system is wrong.”
7. After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [17] to [22] of the CALL-1 Form:
17. The applicant filed the leave application for judicial review on 14/6/2019. In her affirmation in support, she stressed that her life was under threat in Bangladesh. Her enemies were the AL members. She disagreed with the decisions of the TCAB and the Director.
18. This court fixed a hearing on 23/2/2021. The applicant confirmed that she had nothing further to update. She had no specific complaint. She explained that she was terminated early twice because she could not cook the food as requested by her employers.
19. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
20. The adjudicator had analysed her evidence in detail. There are indeed some critical inconsistencies which seriously undermined her credibility. I agree with the findings of the adjudicator.
21. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
22. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”
The present application for extension of time to appeal
8. The applicant’s address as stated in her Form 86 was at Pat Heung, Yuen Long (“the Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 20 May 2021. This letter was not returned undelivered.
9. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 20 May 2021.
10. The applicant took out a summons in the Court of First Instance on 4 June 2021 (1 day after the expiry of the deadline for appeal) seeking an extension of time to appeal, in which her address was also stated to be the Address. She stated in the summons that the reason for the delay in her lodging of the intended appeal was that she “did not get any letter from the court”.
11. The applicant’s application to appeal out of time was dismissed by the Judge on 22 December 2021[6].
12. By a summons filed on 15 February 2022, the applicant renewed her application for an extension of time to appeal before this court. The applicant claimed that she “did not get the decision letter, so [she] failed to appeal in time”.
13. The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge written submissions on or before 1 March 2022.
14. The applicant lodged her submissions late, on 3 March 2022. Given the short delay, we have in this case nonetheless proceeded to consider her written submissions, in which she submitted, inter alia, that the Board did not provide her with legal representation and did not give her enough time to “prove” her claim.
Discussion
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
16. In the circumstances of this case, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.
17. We have nonetheless proceeded to consider the merits of the intended appeal, as the delay was very short.
18. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
19. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision. The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
20. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
21. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
22. As to the applicant’s complaint that the Board did not provide her with legal representation, this court has repeatedly held that it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.
23. We also see no merit in the applicant’s complaint of a lack of time for the preparation of her case before the Board, as much if not all of the documents and materials before the Board were identical to those relied upon by her at the hearing before the Director, such as her non-refoulement claim form dated 27 December 2017.
24. For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal. The summons filed on 15 February 2022 is accordingly dismissed.
| (Carlye Chu) |
(Aarif Barma) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 1406
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance, Cap 115 which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 3755
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