Case Detail

CAMP 63/2020

[2020] HKCA 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2575 OF 2018)

________________________

BETWEEN

	Akter Tania	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Yuen JA and Barma JA in Court

Date of Written Submission:	18 November 2020
Date of Judgment:	2 December 2020

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 30 October 2020 ([2020] HKCA 864) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dismissing her application for leave to apply for judicial review concerning her non-refoulement claim. The applicant is a national of Bangladesh. Her claim was made on the basis that she would be harmed or killed by her first husband if she returns to Bangladesh. She filed her Notice of Motion on 9 November 2020.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 10 November 2020 that the notice of motion shall be determined on paper only without an oral hearing. The applicant lodged a written submission on 18 November 2020. Having considered the papers, we think it is appropriate to determine this application on paper and will do so accordingly.

3. The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Lung. Her application was late for more than three weeks, exclusive of the period of the summer vacation of the court. It was refused by the judge on 12 June 2020 [1]. The applicant renewed her application to the Court of Appeal for extension of time to appeal on 24 June 2020.

4. On 30 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ K W Lung because of the lack of merits of the intended appeal.

5. In the Notice of Motion filed on 9 November 2020, the applicant set out her grounds of appeal as follows:

(1)  The judges were wrong as a matter of law for not having applied the principle on procedural unfairness to the decision of the Director of Immigration, by which the Director and the Adjudicator of the Torture Claims Appeal Board are required to give reasons to justify their decisions.
(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Adjudicator.
(3)  The decisions were not reasonable and fair. She will face hardship if she returns to her country. The Board significantly relied on the source of news which is not officially recognized or is simply hearsay.
(4)  The judges did not apply the law properly.

6. Her submissions in this application are substantially the same as the submissions she lodged previously with the Court of Appeal. She submitted that the Adjudicator had acted in a procedurally unfair manner without properly assessing her credibility and stressed that high standards of fairness are required in the determination of a torture claim.

7. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8. The applicant’s grounds of appeal are just bare assertions without particulars and evidence in support. She has not shown any merits in her intended appeal. In particular, she has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her application. She has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9. A line of authority suggests that appeals against a refusal of extension of time to appeal by the Court of Appeal are not susceptible to further appeal and another authority is to the contrary (Re Mohammed Selim [2020] HKCFA 25 at §§6 to 7). In light of the above conclusion on the lack of merits, it is not necessary to resolve whether the appeal lies to the Court of Final Appeal from the Court of Appeal’s refusal of an extension of time to appeal or from the decision of the Court of First Instance refusing leave to apply for judicial review.

10. For the above reasons, we dismiss the Notice of Motion filed on 9 November 2020 for leave to appeal to the Court of Final Appeal.

(Susan Kwan)	(Maria Yuen)	(Aarif Barma)
Vice President	Justice of Appael	Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 796

CAMP 63 /2020

[2020] HKCA 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2575 OF 2018)

________________________

BETWEEN
	Akter Tania	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submission:	17 August 2020
Date of Judgment:	30 October 2020

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 26 June 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim^{^[1]}.

2. The applicant issued a summons on 3 September 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file her appeal ended on 10 July 2019. Her summons was heard by the judge on 8 November 2019. On 24 June 2020, the judge refused to grant leave to the applicant to appeal out of time as the applicant failed to show she had any reasonable prospect of success in her intended appeal^{^[2]}.

3. On 24 June 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time.

4. The applicant is a national of Bangladesh. She is 31 years old. She started working in Hong Kong as a foreign domestic helper on 16 February 2016. Her employment contract was prematurely terminated on 28 April 2016 and she surrendered to the Immigration Department for overstaying on 22 September 2017. She raised a non-refoulement claim on 18 December 2017 on the basis that she would be harmed or killed by her first husband if she returns to Bangladesh.

The Director’s decision

5. By a Notice of Decision dated 18 May 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]}, torture risk^{^[5]} and the persecution risk.^{^[6]}

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 13 September 2018.

7. The Board found that the applicant fabricated her claims as she provided no medical evidence to support her allegation that she was hospitalised on two occasions due to the ill treatment of her first husband who broke her arm and caused her to suffer extensive burns and there were significant inconsistencies in her evidence. The Board considered that there is not a real risk the applicant would face any harm should she return to Bangladesh for the reasons she claimed. Therefore, the applicant’s appeal was dismissed by the Board on 5 November 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 16 November 2018 to seek leave to apply for judicial review against the decision the Board. Her grounds for judicial review were as follows:

(1)     the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;
(2)     the contents of the hearing bundle were in English and she was unable to obtain interpreter service;
(3)     she was confused at the appeal hearing; and
(4)     the adjudicator had relied upon hearsay information and outdated material in relation to the country of origin.

The judge’s decision

9. A hearing was conducted before the judge on 17 April 2019. The judge held that the applicant had no factual basis for her claim and grounds (1) to (3) of her intended judicial review as mentioned above were inconsistent with what she said in court, as she had told the judge she had a fair interview with the immigration officer and a fair hearing before the adjudicator. She had no evidence to support her bare assertion in ground (4). On 26 June 2019, the judge refused to grant leave to the applicant as she does not have a reasonable chance of success in her intended judicial review.

10. On 2 September 2019, the applicant sought an extension of time to appeal against the decision of 26 June 2019. The judge refused her application on 24 June 2020 as she does not have a reasonable prospect of success in the intended appeal.

Grounds of the intended appeal

11. In the applicant’s written submissions, she stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing her credibility.

Analysis

12. In considering whether to extend time for appealing against 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.

13. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 26 June 2019. The applicant took out a summons on 3 September 2019 and was late for more than three weeks after discounting the period of the summer vacation.

14. The applicant explained in her affirmation filed on 24 June 2020 that she did not have the appropriate means and did not receive the decision on time. She told the judge at the hearing on 8 November 2019 that she did not change her address and she suspected that the decision was collected from the mailbox by some other resident. She said she was only informed of the decision by the Immigration Department when she was under detention in August 2019.

15. It is the duty of a litigant to give the court an address to which correspondence or notice can come to 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 (Re Hasmi Rizwan Imran[2018] HKCA 439 at §15). The applicant’s explanation for her delay is not justifiable.

16. As her delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17. In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

18. 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. Assessment of evidence and Country of Origin Information materials and 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 or procedural unfairness or irrationality in the decision of the Board.

19. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20. The applicant’s grounds are just bare assertion without particulars and evidence in support. In particular, she failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

21. For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss her summons filed on 24 June 2020 for extension of time to appeal against the judge’s decision.

(Susan Kwan)	(Aarif Barma)
Vice President	Justice of Appeal

The Applicant, acting in person

[1][2019] HKCFI 1626

[2][2020] HKCFI 796

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to 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.

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

[6] 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.

AKTER TANIA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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