Case Detail

HCAL 1111/2018

[2021] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1111 of 2018

________________________

RE:

Payara Mst Rabaya Akter

Applicant

________________________

Before:

Deputy High Court Judge C P Pang in Chambers

Date of Hearing:	17 March 2021
Date of Decision:	8 April 2021

______________

DECISION

______________

Background

1. On 22 October 2020, I refused to grant leave to the applicant to apply for judicial review (“the Court’s order”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 11 June 2018. The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 19 September 2017 rejecting the applicant’s non-refoulement claim.

2. The court refused to grant leave to the applicant to apply for judicial review for reasons stated in [11-19] of its decision (Form CALL-1). Significantly the court found that the applicant’s intended application for judicial review had no reasonable prospect of success [20].

3. By a summons filed on 10 December 2020, the applicant applied for extension of time to appeal against the Court’s order. The applicant had 14 days from that order to apply to appeal to the Court of Appeal. She did not do so. She now requires leave to extend time to appeal against that order out of time. The 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 5 November 2020. She was therefore late by more than 1 month with her intended appeal.

4. In her summons and supporting affirmation, the applicant stated that she did not receive the Court’s order. She was told by an immigration officer to submit her appeal paper, then she came to Court to make the application. At the hearing, she said she had moved home from Yuen Long to Yau Ma Tei. She only learnt about the Court’s order when she received a call from her ex-neighbour who received the Court’s letter. Her ground of appeal was that she wanted to stay longer in Hong Kong

Discussion

5. The principles governing the exercise of the Court’s discretion to extend time to appeal are well-established. The Court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

Length of delay

6. As for the period of delay, the intended appeal is more than 1 month late. The delay is not a short one.

Reasons for delay

7. As for the reasons for the delay, the applicant explained that she did not receive the Court’s order (which was sent to her by post to her reported address) as she had moved to a new address. She learnt about the Court’s order from her ex-neighbour. Her explanation in court is not consistent with what was stated in her summons. I reject her explanation. Even assuming it is true, it is the duty of a litigant to give the Court an address and update it, to which court’s notice can come to his/her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant. Moreover, the applicant did not inform the Court her new address promptly. She should bear the consequence. I do not find the delay excusable.

Merits of intended appeal

8. The merit of the intended appeal is a more important factor. It is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim. The primary decision makers are the Director and the Board. Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director). 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. The applicant did not advance any valid grounds for judicial review. Her intended judicial review had no prospect of success and was unmeritorious.

9. The applicant did not put forward any viable grounds of appeal or identify any errors in the Court’s decision. Her desire to stay in Hong Kong is not a viable ground of appeal. Her intended appeal has no merit at all.

Conclusion

10. I cannot see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. Accordingly, I refuse to grant any extension of time. The summons dated 10 December 2020 taken out by the applicant is dismissed.

(C P Pang)
Deputy High Court Judge

The applicant, unrepresented, appeared in person

HCAL 1111/2018

[2020] HKCFI 2592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1111 OF 2018

BETWEEN

	Payara Mst Rabaya Akter	Applicant
	and
	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 submission of the Applicant being present/ absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2. The applicant, born in 1990, is a national of Bangladesh. She arrived in Hong Kong on 18 December 2014 to take up employment as a domestic helper. Her contract was prematurely terminated and her permission to stay ended on 14 September 2015. She then overstayed unlawfully until she was arrested by the police on 10 October 2015 for overstaying and referred to the Immigration Department for investigation. She then lodged a non-refoulement claim. She was subsequently released on recognizance.

3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5-64] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, her life would be in danger because of (i) the political dispute between Awami League (AL) people as she had participated in Bangladesh National Party (BNP) and (ii) her conversion to Christianity from Islam. She claimed that she was raised as a Muslim and supported the BNP. She was appointed secretary of the BNP at her village level in 2005. She participated in activities of BNP and was in conflict with people of AL. She had been assaulted and threatened by AL people in order to stop her from participating in BNP rallies. In August 2014, she formally converted to Christianity. After her baptism, she stopped her BNP volunteer work. She was threatened by BNP members that she would face big problems for conversion of her religious belief. Her husband even tried to hurt her with a fruit knife. She decided to leave her village and eventually left her country after a training for 3 months to take up domestic worker employment in Hong Kong.

The Director’s decision

4. By a notice of decision dated 19 September 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director found that there are no substantial grounds for believing that her life would be endangered by the AL people or the Muslim community upon return to her country. Moreover, state protection as well as internal relocation as a reasonable option are available to the applicant. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5. The applicant attended a hearing before the Board on 22 March 2018.

6. By a decision dated 11 June 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7. The Board gave detailed reasons for rejecting the applicant’s claimat para [70-102] of its decision. The essential reasons can be summarized as follows:

(1)     The applicant’s evidence was vague, confused, inconsistent and unconvincing [71-81,];
(2)     Her evidence about the events after her conversion was “discovered” and her escape from her village were far-fetched and difficult to believe [87];
(3)     She was not a reliable witness and her evidence was embellished, exaggerated and fabricated to create a claim for protection [99];
(4)     The Board did not accept the claims that she was a member of BNP or ever subjected to adverse treatment for her association or involvement of support of BNP [100];
(5)     It did not accept that she converted to Christianity or ever subjected to adverse treatment for reasons relating to her religious beliefs or activities [101].

8. The Board concluded that there was no substantial ground for believing that the applicant would be in danger of being subjected to torture or ill-treatment, if refouled.

Application for leave to apply for judicial review

9. The applicant filed a Form 86 on 15 June 2018 for leave to apply for judicial review of the decision of the Board.

10. In the Form 86 and affirmation in support, the applicant did not set out any grounds for the relief sought.

Discussion

11. The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

12. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali[2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This Observations for the Applicantwill only focus on discussing the latter’s decision.

13. The court is under a duty to examine the decisions of both the Director and the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.

14. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the vagueness, major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Form 86 and affirmation set out no grounds to demonstrate why the Board was unfair or unreasonable in the public law sense. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. The applicant had stopped her participation in BNP after her conversion to Christianity. There was no reason why she should still worry about her safety because of her involvement in BNP. Her conduct in Hong Kong by her delay in lodging the claim for protection after her contract was terminated indeed damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.

18. The Boardengaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately. There cannot be any criticism of the Board’s determination which is eminently reasonable.

19. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

20. For the reasons given, there is no reasonable prospect of success in the applicant’s intended application. Accordingly, I refuse to grant leave to apply for judicial review.

Dated 22 October 2020

	(Chung Lai Fan, Christine)
	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 the Applicant’s 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 22 October 2020 Payara Mst Rabaya Akter 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 22 October 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8624/17/9/296/B984 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1815/17 (formerly RBCZ 13784/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] 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.

[3] This refers to the 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, Cap 383.

[4] This refers to the 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.

RE PAYARA MST RABAYA AKTER

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