Case Detail

CAMP 173/2021

[2022] HKCA 1308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2087 OF 2018)

________________________

BETWEEN
	Begum Farhana	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before:

Hon Kwan VP and Yuen JA in Court

Date of Written Submission:	24 May 2022
Date of Judgment:	7 September 2022

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 25 February 2022 ([2022] HKCA 261). The Court of Appeal dismissed her application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020 ([2020] HKCFI 2057) refusing to grant leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 May 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 24 May 2022. Having considered her submissions and the papers, we think it is appropriate to determine this application on paper.

3. The applicant is a national of Bangladesh and arrived in Hong Kong to work as a foreign domestic helper. Her contract was prematurely terminated and she overstayed. She was arrested by the Immigration Department and applied for non-refoulement claim on 14 February 2018. The applicant’s claim is on the basis that she would be harmed or killed by the Awami League, a rival political party in her home village.

4. The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 30 March 2021 [1].

5. The applicant renewed her application to the Court of Appeal on 18 May 2021. The application was dismissed by the Court of Appeal on 25 February 2022 as there is no prospect of success in the intended appeal[2].

Grounds of appeal

6. The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  There is error in law in the decision.
(2)  The decision maker just relied on the Country of Origin information (“COI”) which favours the rejection of the applicant’s claim. The actual situation is different from the COI.
(3)  The authorities ignored the evidence of violence towards the minorities. The decision betrayed a biased and formula approach unlikely to fairly assess the danger to the applicant’s life and is clearly calculated to reject her claim.
(4)  She will be harmed or killed by the Awami League if she is returned to Bangladesh.

7. In her written submissions, the applicant reiterated the procedural history of her case and further contended that the adjudicator failed to make sufficient enquiry before finalizing the decision and the court did not provide reasoning as to the COI used by the authorities. Therefore, there was a lack of procedural fairness.

Analysis and disposition

8. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

9. Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

10. Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), it 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.

11. The court registry was temporarily closed due to the COVID-19 pandemic during the general adjournment period between 7 March 2022 and 11 April 2022. The court registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office. In other words, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the court registry was reopened.

12. The applicant was late for almost a month in filing her Notice of Motion on 11 May 2022. Her explanation was that she was late because she tested positive for COVID-19 on 20 February 2022 and was subsequently under home quarantine for 14 days. Further, the High Court Registry was closed during the general adjournment period. However, this is unacceptable as she would have completed her quarantine and should be able to file the Notice of Motion by the time the registry re-opened on 12 April 2022. There was no justification for her further delay of almost a month. Her explanation cannot constitute good ground for the court to grant an extension of time to file the Notice of Motion.

13. In any event, the grounds in the Notice of Motion are devoid of merits as she clearly failed to demonstrate that the Court of Appeal was wrong in dismissing her application. Her contention that there is some error in law is a bare assertion without any particulars or elaboration. The other grounds and submissions do not demonstrate that the Court of Appeal was wrong in dismissing her application and 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).

14. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 May 2022.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 724

[2] [2022] HKCA 261

CAMP 173 /2021

[2022] HKCA 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2087 OF 2018)

________________________

BETWEEN
	Begum Farhana	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submission: 8 July 2021

Date of Judgment: 25 February 2022

________________________

J U D G M E N T

________________________

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

1. On 18 September 2020, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^{^[1]} (“the Judge’s Decision”).

2. On 8 October 2020, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal. Thus, the time for filing her appeal ended on 2 October 2020. She was 6 days out of time.

3. On 30 March 2021, the judge refused to grant extension of time to appeal against the Judge’s Decision as, while the delay was insignificant, the applicant failed to show that she had any prospect of success in her intended appeal^{^[2]}.

4. On 18 May 2021, the applicant filed the present application with the Court of Appeal seeking to renew her application to appeal the Judge’s Decision out of time.

5. The applicant is a national of Bangladesh, 34 years old. She came to Hong Kong as a foreign domestic helper on 26 August 2013. Her employment contract was terminated prematurely and she did not depart within the time limit. On 22 September 2017, she was arrested by an immigration officer. On 14 February 2018, the Immigration Department received her application for non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the local supporters of a rival political party, the Awami League (“AL”), in her home village.

6. By a Notice of Decision dated 30 May 2018 (“the Director’s Decision”), the Director rejected the applicant’s claim on torture risk^{^[3]}, BOR 3 risk^{^[4]}, persecution risk^{^[5]} and BOR 2 risk^{^[6]}.

7. The applicant appealed against the Director’s Decision to the Board. The Board conducted a hearing on 14 September 2018, during which the applicant answered inquiries from the Board. The applicant confirmed before the Board that neither Ms Rokeya who was the rival to her mother in an election nor her AL followers had assaulted her. The Board found that she had never suffered any physical harm and, insofar as her alleged mental stress was concerned, there was no medical evidence in support. Further, there was no evidence of any state involvement. The Board also found that internal relocation was available to the applicant. Thus, the Board rejected her claim on the ground of torture risk. For the same reasons, the Board also rejected her claim on the remaining grounds. On a separate basis, the Board also rejected her claim as her version of events was unreliable. Therefore, the Board concluded that the applicant has not made out a case and dismissed the appeal on 28 September 2018 (“the Board’s Decision”).

The Judge’s Decision

8. On 2 October 2018, the applicant applied for leave to bring a judicial review against the Director’s Decision and the Board’s Decision. She advanced several grounds of review which were summarized by the judge at §9 of the Judge’s Decision. After reviewing the Board’s Decision in light of the applicant’s grounds of review, the judge refused the applicant’s leave application.^{^[7]}

9. On 8 October 2020, the applicant took out a summons seeking to appeal the Judge’s Decision out of time. By a decision dated 30 March 2021, the judge refused to accept her explanation for delay and held that, while it was only a delay of 6 days and not significant, the applicant failed to prove that her intended appeal had any prospect of success. Thus, the judge refused to extend time.

The renewed application to Court of Appeal

10. On 18 May 2021, the applicant sought to renew her application for extension of time before the Court of Appeal. In her summons, she repeated that she did not receive the Judge’s Decision on time. In her supporting affirmation filed on the same date, the applicant stated that the Judge’s Decision was lost in the post and she only got the said decision after searching the court file.

11. In her written submissions of 7 July 2021, she advanced two grounds of appeal that may be summarized as follows:

(1) The Board failed to adhere to the principle of high standard of fairness laid down in ST v Director of Immigration [2014] 4 HKLRD 277^{^[8]} and Secretary for Security v SakthevelPrabakar [2005] 1 HKLRD 289;
(2) The Board failed to honor its duty to act fairly as required by The Council of Civil Services Unions v Minister for CivilService [1985] AC 374; Pearl Securities Limited v StockExchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217.

Analysis and disposition

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. Even though a delay of 6 days might not be considered significant, we are not satisfied with the applicant’s explanation. Before the judge, she had explained that her landlord only gave her the Judge’s Decision on 6 October 2020 and by then she was already late in lodging her appeal. However, in her supporting affirmation filed before this court, her explanation was that she had never received the Judge’s Decision by mail and she only found out about that decision when she searched the court file. The inconsistency in her explanations greatly undermined the reliability of her assertions. In any event, these remain bare assertions without any documentary proof. We reject her explanations.

14. Even if the court is minded to accept her explanation in the present case in view of the short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^{^[9]}.

15. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

16. An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

17. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

18. The two grounds of appeal put forward by the applicant are merely iterations of general principles of law without identifying any errors in the Judge’s Decision. They are also regurgitations of the arguments rejected by the judge.

19. The judge explained at §§10 to 14 of his decision why the applicant failed in these grounds of review and affirmed the Board’s Decision as he found that the Board had applied high standards of fairness in its decision. The applicant fails to identify any errors in the above reasons. Thus, there is no viable ground of appeal against the Judge’s Decision.

20. For all these reasons, there is no reasonable prospect of success in the applicant’s intended appeal. It will be futile to grant her an extension of time. We therefore dismiss the applicant’s summons for extension of time to appeal filed on 18 May 2021.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 2057

[2] [2021] HKCFI 724

[3] As defined in Part VIIC of the Immigration Ordinance (Cap.115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[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 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.

[6] 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).

[7] Between the filing of the applicant’s Form 86 and the Judge’s Decision, the Board wrote to the applicant and the Court of First Instance there would be a de novo hearing for the applicant’s appeal as one of the members of the Board had lost his laptop computer. Eight applicants brought judicial review applications against the said directions under HCAL 316/2019. On the ground of review that the Board did not have jurisdiction to direct a de novo hearing, Chow J found in favour of the applicants and held that Board’s decision to set aside the issued decisions was ultra vires: see G&Ors v Torture Claims Appeal Board & Ors [2020] 2 HKLRD 118 at §§36 to 43. As a result, the Board informed the Court of First Instance there would not be a new decision from the Board regarding the applicant.

[8] The correct name for this case is ST v Betty Kwan.

[9] Re Gurung Min Bahadur [2018] HKCA 226 §10

BEGUM FARHANA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

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