RE HALDER LILY

CACV 608/2018

[2019] HKCA 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 608 OF 2018

(ON APPEAL FROM HCAL NO. 550 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)   Extension of time forleave to appeal to Court of Final Appeal

1.1  On 10 May 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 24 December 2018 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

1.2  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3  The applicant now applies, by a notice of motion and affirmation dated 10 July 2019, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission in support of her application.

1.4  Under section 24 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’), if an application for leave is refused by the Court of Appeal, the applicant has 28 days from the date of refusal to file his or her notice of motion.  The applicant is more than two months late.  Before the Court may grant an extension of time for leave to appeal, good grounds have to be shown by the applicant.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party.

1.5  The delay in this case is substantial.  The applicant in her notice of motion and affirmation stated that the reason she was late was because she was sick.  No further explanation was provided as to what her sickness was.  She did not provide any medical certificate for her sickness.  She simply reiterated that her life was in danger.  All of these complaints lacked any meaningful particulars.  We are not satisfied that a reasonable explanation has been given.  

1.6  As to the merits of the application, the applicant’s written submission lacked specificity and relevance.  The written submission is a pro forma document that is commonly used in this type of application.  It sets out broad and general terms legal principles, concepts and statutory provision for non‑refoulement or constitutional law cases.  They are simply legal propositions without more.

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1  The matters stated by the applicant in her notice of motion, affirmation and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.   Nor is there any such question apparent to us from the matters she has raised in her notice of motion, affirmation and written submissions.

3.2  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.  For these reasons, we refuse to extend time and dismiss the notice of motion dated 10 July 2019.

CACV 608/2018

[2019] HKCA 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 608 OF 2018

(ON APPEAL FROM HCAL NO. 550 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.   This is an appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam given on 24 December 2018 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

2)  Factual background

2.1   The applicant is a national of Bangladesh.  On 12 April 2014, she arrived in Hong Kong to work as a domestic helper.  In July 2014, the applicant’s employment contract was prematurely terminated.  She was required to leave by the end of July 2014 but she did not and overstayed.  On 2 September 2014, she raised her non-refoulement claim.

2.2   The basis of the applicant’s claim is that she is a member of the Bangladesh Nationalist Party and she will be harmed or killed by Azizul and his group, who are Muslims and affiliated with the rival Awami League (‘AL’).

2.3   The background facts have been summarized in the decision of the Judge at [1]-[9].

3)   The Director’s Decision and the Director’s Further Decision        

3.1   The Director decided against the applicant’s torture claim on 10 June 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2   The Director further decided against the applicant’s claim for risk of life under Bill of Rights Article 2 (‘BOR 2’) on 7 December 2016 (‘the Director’s Further Decision’).

4)  The Board’s Decision

4.1   The applicant appealed to the Board.  She appeared at a hearing before the Board on 7 March 2017.  The Board dismissed the applicant’s appeal on 9 March 2018 (‘the Board’s Decision’).

4.2   The Board found that even on the applicant’s own account of events, the applicant had not been inflicted with ill‑treatment to a minimum level of severity.  The complained situation was not on account of any Convention reasons such as race or religion.  There was no evidence that the applicant’s enemies were public officials or acting in official capacity.  There was no evidence of state involvement or state acquiescence. There was also no evidence that a consistent pattern of gross, flagrant or mass violations of human rights existed in Bangladesh.  The applicant had not reported her alleged enemies to the police.  She failed to prove reasonable state protection was unavailable to her.

5)  Decision of the Judge

5   The Judge assessed the applicant’s application for leave for judicial review.  He stated the principle that 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.  He stated that the Court of Appeal has repeatedly stated that high standards of fairness do not prescribe a non-refoulement claimant an absolute right to free legal representation at all stages of the proceedings.  The Judge found that the applicant’s complaint about language problem was without merit, as the applicant had access to friends who could help with the applicant’s language understanding.  She also had the assistance of an interpreter while she was legally represented and also she had the assistance of an interpreter before the Director and the Board.  The Judge found that there was no delay in the delivery of appeal bundle to the applicant.  The Judge found that the applicant failed to be specific on what was her complaint about ‘outdated cases’ or ‘information not officially recognized or simply hearsay’.

6)  Grounds of appeal

6.1   The applicant in the notice of appeal filed on 28 December 2018 stated that she will suffer hardship if she is returned to her home country without explaining why.  Again, she stated that the Board has significantly relied on source of news which is not officially recognized or simply hearsay, without any supporting information.  She complained again that the cases used (by the Board) were outdated without explaining how they were outdated.

6.2   The applicant’s skeleton submissions lodged on 22 March 2019 also lacked specificity.  It repeated the need for ‘a high standard of fairness’, or that the Court must assess with ‘rigorous examination and anxious scrutiny’, or that the Court must give the applicant ‘every reasonable opportunity’ to establish his claim without giving specifics or elaboration.

7)  Our view

7.1   We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  Many of the grounds of appeal have been considered by the Judge below.  The applicant provided no specifics or elaboration on what were her grounds of appeal.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

7.2   Accordingly, the appeal is dismissed.