RE AKTER SAFIA

CACV 214/2021

[2022] HKCA 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2021

(ON APPEAL FROM HCAL 972 OF 2018)

____________________

RE:

AKTER SAFIA

Applicant

____________________

Before:  Hon Barma JA and G Lam JA in Court

Date of Judgment:  20 May 2022

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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 14 September 2021, this court (Barma JA and G Lam JA) handed down a judgment dismissing the applicant’s appeal against the decision of DHCJ Bruno Chan given on 27 April 2021 refusing to grant an extension of time to the applicant for her application for leave for judicial review and dismissing her application for leave to apply 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 appeal, 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 filed on 24 September 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that the Board had (i) failed to consider the risks she may face if refouled; (ii) failed to observe relevant country of origin information; and (iii) failed to consider her claim under the BOR 3 risk[2].

4.  In her written submissions lodged on 6 October 2021, the applicant in essence repeated the complaints set out in her Notice of Motion.

5.  Having considered the applicant’s Notice of Motion and written submissions, 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.

6.  In her written submissions, the applicant merely alleged that it was “improper” for the court to “support” the Board’s decision, but did not provide any basis or particulars in respect of this complaint.

7.  The matters stated by the applicant do not constitute grounds for granting leave to appeal 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.

8.  Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 24 September 2021 is dismissed.

(Aarif Barma) Justice of Appeal

(Godfrey Lam) Justice of Appeal

The applicant acting in person

CACV 214/2021

[2021] HKCA 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2021

(ON APPEAL FROM HCAL 972/2018)

-----------------------------------

RE:

AKTER SAFIA

Applicant

-----------------------------------

Before: Hon Barma JA and G Lam JA in Court

Date of Hearing: 30 August 2021

Date of Judgment: 14 September 2021

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 April 2021 refusing to grant extension of time to the applicant for her application for leave for judicial review and dismissing her application for leave to apply 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 (“Board”) dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 5 June 2015 and 24 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh. She entered Hong Kong on 1 April 2014 to work as a domestic helper. Her contract was terminated prematurely on 1 September 2014. She overstayed and was arrested on 22 October 2014. She lodged a non-refoulement claim on 9 December 2014.

3.  The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [1] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 5 June 2015 (“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 24 November 2016, 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 Board. After a hearing on 24 January 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [44] of the Board’s Decision, the Board found that there was no evidence to suggest that the applicant was targeted by the opposing political party or the Bangladeshi government. The Board therefore held that the applicant could not establish that she would be subject to any of the proscribed risks of harm. The Board was also satisfied at [53] that state protection would be available for the applicant.

The judge’s decision

8.  The applicant filed a Form 86 on 30 May 2018 seeking to judicially review the Board’s Decision, which contained no ground for seeking relief. In the affirmation of the same date, the applicant exhibited the relevant documents without giving any grounds.

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  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 extend time for applying for leave for judicial review and dismissed the application for leave to apply for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [21] of the CALL-1 Form:

“14. By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15. As the last day of the three-month period for her to file her Form 86 fell on 1 March 2018, the Applicant was therefore almost 3 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v The Director of Immigration [2016] 2 HKC 393.

16. In the Applicant’s case, a delay of almost 3 months must be considered as significant or substantial, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good or valid reason for her significant delay.

17. As for the merits, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her intended challenge either. As such and in the absence of any error in law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in her intended application.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

19. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. In the premises and 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 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.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time, and accordingly dismiss her leave application.”

Grounds for appeal

11.  In the Notice of Appeal filed on 3 May 2021, the applicant stated that:

“1. The [Board] and the [Director] failure to comply with their duty to make sufficient inquiries into the country of origin conditions of my claim and adopted a passive approach in contravention of the high standards of fairness viz. the discharging of the burden of proof as per Li CJ in Prabakar at paras 54-55, and TK at paras 22-23.

2. Failing to take into account relevant considerations/take into account irrelevant consideration. When assessing a non refoulement claim the Decision makers must pay due regard the applicable rules of law, have regard to all relevant matters and not to have regard to irrelevant matters. It is submitted that the [Board] and the Director failed to take into account and / or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal. Specially, both failed to give due regard to:

a) the fact is my life was so dangerous and threatened from my enemies for which I would fear to return to my country of origin, my fear still continue in there and my enemies will harm me if I return to my country.

b) the fact that I must have bene placed in severe mental distress as a result of being targeted to kill me or trace me where ever I hide in my country, I couldn’t got any protection from the Authority.

3. In the judgment of my Notice of Appeal the honourable Judges stated that there was no merit in my claim which can prove that I would face real risk if I return to my country. Its appear to me that my claim may be private and personal matter but it’s my real claim which I had shown I would not be free of risk of harm upon refoulement to my country of origin, there I would be face risk of my life.”

12.  In her skeleton submissions lodged on 19 July 2021, the applicant reiterated the matters raised in the Notice of Appeal.

13.  We heard the appeal on 30 August 2021.

Discussion

14.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

15.  The applicant only identified alleged errors on the part of the Director and the Board but did not identify any error on the part of the judge. She has therefore failed to advance any viable ground of appeal.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.

(Aarif Barma)	(Godfrey Lam)
Justice of Appeal	Justice of Appeal

The applicant appeared in person