AKTER SHORNALEE v. THE PETITION TEAMS (SECURITY BUREAU) [Decision on Leave Application]

HCAL 746/2018

[2021] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 746 OF 2018

____________________

____________________

____________________

DECISION

____________________

Introduction

1.  This is the applicant’s application by summons dated 26 February 2021 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 17 July 2020 (the “Order”) refusing his application for leave to apply for judicial review. 

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  By 26 February 2021, the time to appeal has expired.  The application for leave to appeal is six months and twenty-six days out of time. 

3.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the 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. 

Length of the delay and reasons for delay

4.  In his affirmation filed on 26 February 2021 in support of his application for extension of time, the applicant did not give any explanation for the delay.  He simply said that he sought extension of time because he “cross the time limit”, as if extension of time is as of right. 

5.  On 16 June 2021, I gave directions to the applicant to file an affirmation setting out his explanation for the late application and his proposed grounds of appeal within 14 days. The instructions are as follows:

“(1) The applicant to file an affirmation with court setting out:

(a)  the circumstances he came to know about the Order of the Court and exhibit supporting documentary evidence, if any;

(b)  explanation for the late application and exhibit supporting documentary evidence, if any, such as envelope with post mark containing the Order of the Court;

(c)  if the applicant has changed his residential address since the date of application for leave to apply for judicial review,

(i)  the date of change and new address, with supporting documentary evidence, such as tenancy agreement, rental receipts, letters from government department or other bodies, if any;

(ii)  the date of reporting the change to Immigration Department; and

(iii)  the date of informing the change to the High Court;

(d) the grounds of appeal; and

(2)     The application for extension of time will be determined on paper after 14 days from the date hereof, regardless whether the directions at paragraph (1) have been complied with.”

6.  The applicant did not file any affirmation. Instead, he sent a letter dated 22 June 2021 to the court.  In the letter, he repeated his fear.  He said he “did not get my decision letter (ie the Order and Form Call-1) timely and that the immigration officer told him to go to the High Court and appeal, but the time was over”.  He said he did not know why he did not get the letter.  He suggested that the sweeper might have thrown the letter away as there is only one letter box and there are many incoming mails every day.  His ground of application is that he could not return to his home country as his problem there has not been solved and his life will be at risk, if refouled.

7.  Simply put, the applicant’s explanation is that he did not receive the Order because the sweeper might have thrown it away for there were too many mails in the letter box.  He was given clear and detailed instructions what to include in the affirmation.  But the information he gave is far from complete or satisfactory; and I shall show is incorrect and misleading. 

8.  In respect of paragraph 1(a) of the directions, I assume for his benefit that his case is that he did not receive the Order and did not know about the making of the Order until he was informed about the Order by the immigration officer in his routine reporting.

9.  Under paragraph 1(c) of the directions, if the reason for late receipt or non-delivery of the Order was due to change of address, the applicant is required to produce evidence of change of address, date of reporting the change to the Immigration Department and the date of informing the change to the High Court.  The Order and Form Call-1 were sent to the applicant’s address at Pei Ho Street in Sham Shui Po, which according to the record of the Court is the last known address of the applicant.  However, the address of the applicant as shown on the summons is in Kam Muk Road in Yuen Long.  Obviously, the real reason why he did not receive the Order is because he had changed his address without notifying the High Court; and not that the sweeper had thrown away the mails from the letter box. 

10.  The applicant was required to comply with paragraph 1(c) of the directions to provide the information and supporting documentary evidence about the change of address, the date of change, the date of notification to the Immigration Department and the High Court, if available.  None of the information or supporting documentary evidence required was produced.  The applicant simply ignored the direction, as if he had not changed his address, which is the real reason for non-receipt of the Order.  He must know his change of address is the reason for non-receipt of the Order. Yet, he evaded the directions, concealed that true reason and made up a suggestion that the sweeper cleared the mail box and threw away the mails to mislead the Court.  He gave a false reason.  In Re Karamjit Singh[2], the Court of Appeal “it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) his change of address, there would be delay in communication.  If he does not do so, he should arrange for timely transmission of mail from his old address to his new address.  It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant ...”.  The applicant only has himself to blame for not receiving the Order which prevented him from lodging an appeal within time. There are no valid reasons for the delay.

11.  The applicant was given clear directions under paragraph (1)(d) of the directions to state his grounds of appeal.  Not only did he not file an affirmation setting out his grounds, his letter which was apparently lodged for the purpose of compliance with the directions did not contain any arguable grounds of appeal.  He only repeated that he could not return to his home country because his problem there has not been solved and his life is at risk.  These are the only grounds for his leave application.  In effect, the applicant seeks to challenge the finding of fact by the Board.  Those arguments had been presented before the Director and the Board and were rejected at both levels.  Those arguments were then repeated before Deputy High Court Judge Pang when considering his application for leave to apply for judicial review and were, in my view, rightly rejected by the learned judge in paragraphs 8 to 16 of the Form Call- 1.

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  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 court will scrutinize 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[3].  The grounds now advanced by the applicant are challenges to the finding of fact by the Board.  I adopt the reasons stated by Deputy High Court Judge Pang in refusing his application for leave.  These grounds do not constitute any valid ground for applying for judicial review, still less a ground to challenge a decision refusing such leave.  

13.  For the reasons as stated in the above paragraph, I can only come to the conclusion that there are no arguable grounds of appeal.  As such, the intended appeal has no prospect of success.

Prejudice to the respondent

14.  As for prejudice to the proposed respondent, usually this issue would not be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

15.  In summary, there is no valid explanation for a short delay of albeit two days.  That is not fatal to an application for extension of time.  But the absence of an arguable ground of appeal with prospect of success is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.

HCAL 746/2018

[2020] HKCFI 1623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.746 OF 2018

     Application for Leave to Apply for Judicial Review

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

Following:

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 Petition Teams (Security Bureau)” of its decision dated 16 April 2018.

2.  The applicant, born in 1987, is a national of Bangladesh.  She arrived in Hong Kong on 1 November 2013 as a domestic helper and was permitted to remain until 1 November 2015. The contract was prematurely terminated on 8 May 2014.  She overstayed after 23 May 2014.  On 21 June 2014, she surrendered to the Immigration Department.  On 29 September 2014 she lodged a non-refoulement claim and was subsequently released on recognizance.

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [30, 32, 37-45] of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”).  Put simply, the claim was based on the fear that, if refouled, she would be harmed or even killed by a party known as AL (in abbreviation) which is the ruling party in the country as well as from AL’s Student Wing known as CL.  She was threatened and harmed by a woman called Salma and members of CL in 2013.  She feared further harm from them if returned to Bangladesh.  She also claimed that AL gangsters had burned down many of her relatives’ houses.

The Director’s Decision

4.  By notice of decision dated 21 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that her claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.  She attended an oral hearing before the Board on 6 March 2018 and gave oral evidence at the hearing.

The Board’s Decision

5.  By Decision dated 16 April 2018, the Board rejected her appeal and confirmed the Director’s decision.  Her case was rejected on all applicable grounds.  The Board gave detailed reasons for rejecting the claimat [88-107] of its decision.  In a nutshell, the Board found major inconsistencies and contradictions in the applicant’s account, there was also new claim at the hearing.  Having considered the totality of the evidence before it, the Board rejected all the applicant’s factual basis underlying her non-refoulement claim.  It found, inter alia, that she was not a member of the political party BNP or JCD as she claimed to belong; she was never harmed, or threatened with harm in her home area; nor was she involved in a dispute with a woman called Salma or with AL or CL; her brother had never been a member of BNP or JCD or ever been arrested and kept in custody; she was not of any adverse interest to AL or the authorities.  The Board concluded that she could return to Bangladesh unhindered and she was not at real risk of any of the proscribed types of harm.

Application for leave to apply for judicial review

6.  The applicant filed her Form 86 on 27 April 2018 for leave to apply for judicial review of the decision of “The Petition Teams (Security Bureau)” dated 16 April 2018.  She did not request an oral hearing.  The application is therefore considered on the papers.  As it is apparent that the applicant was asking to judicially review the decisions of the Board and the Director, the application will be considered on this basis.

7.  In her Form 86, the applicant stated that the Security Bureau gave her an unfair and wrong decision and she would meet threat to her life in her country.  In her affirmation in support, the applicant further deposed that she still feared threat to her life by her enemies in her country.  She said she was unable to give any supporting document at her last interview, but she would try her best to take it as soon as possible.

Discussion

8.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524.  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 and COI materials, 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.

9.  The Director’s decision has been superseded by the Board’s decision and hence not amenable to judicial review: Re Moshsin Ali[2018] HKCA 549.  Therefore, the Court will only focus on the latter’s decision.

10.  In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it rejected the accounts of primary facts based on the major inconsistencies and contradictions in her evidence.  On the factual findings, it concluded that she was not at real risk of harm of any of the proscribed types of harm.  As mentioned, evaluation of evidence and the assessment of risk are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so. 

11.  By a letter dated 11 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make.  In response, the applicant sent a letter to Court reporting that her address remained the same and attached to it with the decisions of the Board and the Director.

12.  The grounds raised by the applicant are just general and vague assertions, without any particulars as to how the Board was wrong, unfair or unreasonable in the public law sense.

13.  As to the claim that she was unable to give her supporting document to the Board at the hearing, no reasons were given for her failure.  She had plenty of time to obtain the documents before the hearing.  Even in her affirmation in support and her last letter sent to the Court on 15 May 2020, she still failed to identify what the documents are and when she can submit them.  There is no merit in this ground.

14.  In the present case, the Board with the benefits of hearing the applicant of her oral evidence rejected her non-refoulement claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  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 any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

Conclusion

16.  For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  I accordingly refuse to grant leave to apply for judicial review.

Dated 17^th day of July 2020

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

Form CALL-1