RE KHATUN MST MUKTI

CAMP 260/2021

[2021] HKCA 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 260 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1188 OF 2018)

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J U D G M E N T

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

1.  On 7 October 2021, this court handed down judgment ([2021] HKCA 1465) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 1 March 2021 refusing to extend the time for her to apply for judicial review in respect of her non‑refoulement claim.

2.  On 11 October 2021, the applicant filed a Notice of Motion applying for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 18 October 2021.

3.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted if 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.

6.  The Notice of Motion stated that as the applicant’s application for leave to apply for judicial review and her appeal to the Court of Appeal were dismissed, she wants to go to the Court of Final Appeal to get justice. 

7.  In the written submission, the applicant stated that she has political problem in her country as her enemy is the current ruling party, and the chief of the present government wants to kill her so as to continue her rule.  Other workers of the applicant’s party had been killed, and the applicant was lucky to have fled to Hong Kong.  The applicant further stated that the Director of Immigration and the Torture Claims Appeal Board were wrong in rejecting her claim, hence she wants to go to the Court of Final Appeal to get justice.

8.  What have been put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance.  Further, as pointed out in [8] and [17] of our judgment, the applicant has provided no ground in support of her application for judicial review and the intended appeal against the judge’s refusal of leave to apply for judicial review.       

9.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.

CAMP 260/2021

[2021] HKCA 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 260 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1188 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 1 March 2021 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of her application.  Despite directions given by the Registrar of Civil Appeals, she has not lodged a written submission.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 June 2018 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 26 April 2017 rejecting her non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 31.  She last entered Hong Kong on 23 September 2015 and was given permission to remain to work as a domestic helper.  After her employment contract was prematurely terminated on 25 November 2015, she did not depart and overstayed.  On 31 March 2016, she surrendered to the Immigration Department.  She raised a non-refoulement claim on 7 July 2016 based on fear of being harmed or killed by members of the Awami League who had targeted her father, and later her family, because he refused to leave the Bangladesh Nationalist Party and join the Awami League.  The details of the applicant’s claim were set out in the Director’s decision at [6] and the Board’s decision at [5].  We will not repeat them.     

6.  By his decision dated 26 April 2017, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 1 February 2018.  By its decision dated 22 June 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence and her claim incredible, having regard to the marked differences between her oral evidence and her initial statement to the Director, the internal contradictions and lack of details in her evidence as well as her inability to provide details and to explain the differences and contradictions.  The Board rejected the entirety of the applicant’s claim and concluded that she failed to establish that she faces a real risk of harm that warrants non-refoulement protection on any of the appliable grounds.

8.  On 25 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She provided no ground for seeking relief. 

9.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 1 March 2021[5], the Judge refused to give leave to apply for judicial review.  The Judge was of the view that the intended judicial review had no reasonable prospect of success as there was no error of law or procedural unfairness in the Board’s decision. Nor did he consider the Board’s decision Wednesbury unreasonable.      

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 15 March 2021.

11.  By a summons filed on 28 April 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge considered the application on papers, and by his decision handed down on 20 May 2021[6] refused the application. 

12.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 19 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The present application was late by more than seven weeks.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by more than six weeks when she filed the summons for extension of time in the Court of First Instance.  The delay is not insubstantial.  Both in the application before the Judge and in this application, the applicant explained that she did not receive the court’s decision.  She said that she had been sick.  The Judge pointed out, and we agree, that the explanation was not satisfactory because the CALL-1 Form was sent to the address provided by the applicant and had not been returned by the Post Office.  Additionally, the applicant has offered no explanation for the delay in making the application to this Court.      

15.  As to the merits of the intended appeal, we 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].

16.  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’s decision, 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.

17.  In the present application, the applicant has not put forward any ground to support her intended appeal.  She has not identified any error in the Judge’s decision.   

18.  We have also examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s findings and decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

19.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 19 July 2021.