RE HALDER REKHA RANI

CAMP 108/2019

[2021] HKCA 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 108 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1080/2017)

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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.  On 8 December 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 21 September 2018 dismissing her second application for leave for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 11 December 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.  Rest of the grounds I will submit as soon as possible.”

4.  In the affirmation dated 11 December 2020, the applicant deposed that:

“1. The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2. The [judges] also failed to find out the clear details of the current situation of Bangladesh”

5.  The applicant failed to comply with Practice Direction 2.1 and she did not lodge the skeleton submission within the time limit, despite having been reminded of the same by the direction made by the Registrar of Civil Appeals on 14 December 2020.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  As we have explained in [17] of our judgment, in order to succeed in the appeal before us the applicant needed to address the only basis upon which the judge struck out and dismissed her application for leave for judicial review, being res judicata.  None of the grounds mentioned by the applicant in her Notice of Motion or Affirmation relate to the issue of whether the applicant should be permitted to bring a second application for leave for judicial review.  They therefore provide no basis for a further appeal.  In any event, those grounds are not reasonably arguable before the Court of Final Appeal. 

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 11 December 2020 is dismissed.

CAMP108/2019

[2020] HKCA 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 108 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1080/2017)

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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 Deputy High Court Judge Bruno Chan given on 21 September 2018 dismissing her second application for leave 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 dated 21 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 1 June 2016 and 19 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  She entered Hong Kong on 14 June 2014 to work as a foreign domestic helper.  After her contract was terminated, she overstayed and was arrested on 15 October 2015.  She lodged a non-refoulement claim on 26 October 2015. 

3.  The applicant’s claim was based on alleged threats from 3 gangsters who are said to be politically well-connected.  The details of the applicant’s claim have been summarised by the judge at [1] of the CALL-1 form.

4.  By a Notice of Decision dated 1 June 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 19 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 6 February 2017, the Board dismissed the appeal on 21 March 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [28] of the Board’s Decision, the Board stated that it did not accept the applicant’s evidence that there had been threats to kill her on her return.

The judge’s decision

7.  The applicant filed a Form 86 in HCAL 135/2017 seeking judicial review of the Board’s Decision.  Her application was dismissed by Toh J on 18 September 2017.  The applicant did not appeal against that decision.

8.  Instead, the applicant filed a Form 86 on 14 December 2017 in these proceedings (HCAL 1080/2017) which contained no ground for seeking relief.

9.  In her affirmation in support of the leave application dated 14 December 2017, the applicant advanced the following grounds for judicial review which were summarised as follows by the judge at [5] of the CALL‑1 form:

(1)     procedural impropriety/unfairness in the Board’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 Board’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 Board’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 Board’s failure to analyse and assess whether state protection exists in Bangladesh and misdirecting 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 Board’s applying the incorrect standard of proof in its 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.

10.  The judge noted that the applicant had advanced the same grounds in HCAL 135/2017.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [6] to [7] of the CALL-1 form:

“6.    Her application then came before Madam Justice Toh and after an oral hearing when the 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.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 11 March 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ Bruno Chan on 7 May 2019.

13.  By a summons dated 31 May 2019, the applicant renewed her application for an extension of time to appeal before this court (although her summons purported to be an application for leave to appeal out of time against DHCJ Bruno Chan’s decision dismissing her application to him for leave to appeal out of time, we shall treat it as a renewed application for leave to appeal out of time against the substantive decision dated 21 September 2018).  She referred to her affirmation filed on the same day as setting out her grounds of appeal. In the affirmation she deposed that:

“The grounds of my application are as follows:

a)     [the judge] was wrong in law in holding that there was no state acquiescence or involvement.

b)     [the judge] failed to provide detailed reason in support of his decision”

14.  In her skeleton submissions dated 18 July 2019, the applicant submitted that the delay in bringing the intended appeal was due to the time needed to obtain legal representation and the relevant documents from the Duty Lawyer Service and the Security Bureau.  She also raised the following further grounds of appeal:

(1)     The Board failed to meet the high standard of fairness; and

(2)     The decision-maker failed to meet the minimum standards of procedural fairness.

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.

16.  The applicant failed to provide particulars of the difficulties she faced with obtaining legal representation and documents.  We are of the view that she has not provided any reasonable explanation for her delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  The judge rejected the applicant’s application as an abuse of process, as it was her second application for judicial review, and no reason had been offered as to why she should be permitted to relitigate her application.  The applicant has not challenged this conclusion.  None of the proposed grounds put forward by her, whether in her affirmation or skeleton submissions engage with this point.  For our part, we consider that the judge was entirely justified in dismissing the application on this ground and has given adequate reasons for his decision.  For this reason alone, the intended appeal is bound to fail.

18.  In any event, the other grounds all lack particulars and no explanation is given as to how they might be relevant to the situation of the applicant. They are therefore bound to fail in any event.

19.  We therefore do not see any prospect of success in the intended appeal, and will not grant an extension of time for a hopeless appeal.  The summons of 31 May 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person