Case Detail

HCAL 1080/2017

[2019] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1080 OF 2017

______________

RE:

HALDER REKHA RANI

Applicant

______________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 2 April 2019

Date of Decision: 7 May 2019

_____________________

D E C I S I O N

_____________________

1. On 21 September 2018 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal/petition regarding her non-refoulement claim upon finding none of the grounds put forward by her as reasonably arguable or with any prospect of success in her intended application.

2. The applicant now by a summons issued on 11 March 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to lodge her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 5 October 2018, and hence she was late by more than five months.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the 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.

4. In the applicant’s case a delay of more than five months must be regarded as substantial and excessive, for which she explained in her supporting affirmation of the same date that she was unable to open the mailbox of her rented residence to receive the Court’s decision because her landlord had taken the key with him when he travelled to China, and hence she was not aware of the decision until about 12 February 2019 when she was informed by the Duty Lawyer Service (“DLS”).

5. However, at the hearing of her summons when she was asked to elaborate further the explanation in her affirmation for the delay, she appeared confused and eventually admitted that she had in fact no problem accessing her mailbox, and that her affirmation was prepared by her friend without reading back to her and hence that part in her affirmation about her landlord taking the key to the mailbox with him to China is not correct, and that the correct version of her explanation was that after receiving the Court’s decision, she did not know what to do and it was not until later in February 2019 when she was informed by DLS that she could appeal, but as she was then out of time and so she got her friend to prepare her summons for leave to appeal out of time, of which I do not accept that she has provided any good reason for her delay.

6. Nor did she provide any draft or proposed ground for her appeal,or any particulars as to any error in the decision or why it was unreasonable or unfair, for which she again blamed it on her friend who prepared the documents for her, and when she was invited to give her grounds for her appeal in court, she was unable to do so, claiming that there was no error in the decision but as it was still dangerous for her to go home, she just wantedto remain in Hong Kong. As such I am unable to see any prospect of success in her intended appeal.

7. In the premises it would be futile to extend time for what appears to me a hopeless appeal. Accordingly I refuse her application for leave to appeal out of time, and dismiss her summons.

	(Bruno Chan)
	Deputy High Court Judge

The applicant appeared in person

HCAL 1080/2017

[2018] HKCFI 2069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1080 of 2017

BETWEEN

	Halder Rekha Rani	Applicant
	and
	Abu B. Bin Wahab, ESQ., Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1. The applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 14 June 2014 with permission to work as a foreign domestic helper, but when her employment contract was prematurely terminated on 19 December 2014 she did not depart and instead overstayed until her arrest by the police on 15 October 2015. After being referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by a trio of local gangsters in her home village over certain personal dispute while in Bangladesh. She was then released on recognizance pending the determination of her claim.

2. By a Notice of Decision dated 1 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3. By a Notice of Further Decision dated 19 January 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

4. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which she filed on 8 June 2016, and for which she attended an oral hearing on 6 February 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 21 March 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

5. On 12 April 2017 the applicant filed her Form 86 under HCAL 135/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following eight grounds for her intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

6. Her application then came before Madam Justice Toh and after an oral hearing whenthe applicant appeared in person, it was dismissed by the court on 18 September 2017. That decision was never appealed by the applicant who instead filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she listed exactly the same eight grounds as before when all which had already been dealt with and rejected by the court in the previous proceedings of HCAL 135/2017.

7. In the premises and as the principle of res judicata applies, this second application is clearly an abuse of the court’s process by the applicant. Accordingly her application is hereby dismissed.

Dated the 21^st day of September 2018.

	(NG Ka-wing)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 21 September 2018 Halder Rekha Rani Applicant’s ref. no.:Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21 September 2018 Abu B. Bin Wahab, ESQ., Torture Claims Appeal Board /Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3873/16/6/63/B533 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001563/16 (Formerly RBCZ 14376/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

HALDER REKHA RANI v. ABU B. BIN WAHAB, ESQ.,AND ANOTHER [Decision on Leave Application]

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