Case Detail

CAMP 319/2022, [2023] HKCA 791

On appeal from [2022] HKCFI 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 319 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2329 OF 2018)

________________________

BETWEEN
	Sumi Tahera Akhter	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and G Lam JA in Court

Date of Judgment:

30 June 2023

______________________

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 handed down on 18 January 2023 ([2023] HKCA 76). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 February 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 8 March 2023 that the applicant shall lodge written submissions on or before 22 March 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Bangladesh. She entered Hong Kong to work as a foreign domestic helper in June 2016 and her employment was prematurely terminated on 26 August 2016. The applicant overstayed and was subsequently arrested on 10 May 2017. She then lodged a non-refoulement claim on 26 May 2017 on the basis that she would be harmed or killed by her husband for leaving him if she is returned to Bangladesh.

4. She 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 6 July 2022 [1].

5. On 29 August 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 18 January 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6. In the Notice of Motion filed on 8 March 2023, the applicant stated that all the judgments are not good for her so she wants to go to the Court of Final Appeal.

Analysis and disposition

7. 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

8. Section 22(1)(b) of the Ordinance 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.

9. The applicant was late for three weeks in filing the Notice of Motion and did not provide any explanation for the delay. There is no good ground for the court to grant an extension of time for her to file the Notice of Motion.

10. In any event, she does not have any viable ground of appeal against the decision of the Court of Appeal. She has not pointed out any error of the Court of Appeal in refusing to grant extension of time to appeal, nor has she identified 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).

11. 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 8 March 2023.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 1959

CAMP 319/2022

[2023] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 319 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2329 OF 2018)

________________________

BETWEEN
	Sumi Tahera Akhter	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and G Lam JA in Court

Date of Written Submissions:	13 September 2022
Date of Judgment:	18 January 2023

________________________

J U D G M E N T

________________________

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

1. On 25 February 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2. On 6 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there is no merit in the intended appeal[2].

3. On 29 August 2022, the applicant filed the present summons with the Court of Appeal challenging the decisions of the court. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 25 February 2022.

4. The applicant is a national of Bangladesh. She is 38 years old. She entered Hong Kong to be employed as a foreign domestic helper on 13 June 2016 but her employment was prematurely terminated on 26 August 2016. The applicant overstayed and was subsequently arrested on 10 May 2017. She then lodged a non-refoulement claim on 26 May 2017 on the basis that she would be harmed or killed by her abusive husband for leaving him if she is returned to Bangladesh.

5. By a Notice of Decision dated 23 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk [5] and persecution risk[6].

6. The applicant appealed against the Director’s decision. She appeared before the Board for an oral hearing on 7 June 2018, during which she answered questions raised by the adjudicator. In essence, the Board did not accept the applicant’s claim that her husband would cause her harm if she is returned to Bangladesh. The Board found there were numerous inconsistencies in the evidence produced by the applicant and the evidence previously given to the Immigration Department. These included contradictions such as the claim to the Immigration Department that she was no longer in contact with her family, but she admitted at the hearing before the Board she has maintained communications with her sister. The applicant’s credibility was further undermined by her delay to raise her non-refoulement claim notwithstanding she has been in Hong Kong for a substantial amount of time. In light of its findings, the Board dismissed the applicant’s appeal on 19 October 2018.

The judge’s decision

7. On 24 October 2018, the applicant filed a Form 86 for leave to apply for judicial review against the decision of the Board. As summarised by the judge[7], she put forward the following grounds for her intended challenge:

“(1) That the Board erred in failing to maintain high standard of fairness by not holding any oral hearing for the appeal to allow the Applicant an opportunity to put forward her case;
(2) That the Board failed to apply the minimum standards of procedural fairness required in its decision making process; and
(3) That the Board failed to take into account of the fact that the Applicant was not legally represented and that she has insufficient legal knowledge which could have jeopardized her representation in her appeal process.”

8. The court had scheduled a hearing for her application. However, the applicant was absent in open court and the judge decided to deal with her application on paper.

9. The judge did not accept the three grounds put forward by the applicant and held there was no reasonably arguable basis to challenge the findings of the Board. He held that the complaint in ground (1) has no factual basis; an oral hearing was held on 7 June 2018 during which the applicant testified before the Board and made further representations of her case and answered questions. As for ground (2), the applicant did not provide any details or particulars how the Board had failed to apply high standards of fairness in assessing her claim or her appeal. For ground (3), the complaint of lack of legal representation before the Board was not reasonably arguable, as the applicant had legal representation from the Duty Lawyer Service before the Immigration Department. Thus, the judge dismissed the applicant’s application on 25 February 2022.

Grounds of appeal

10. The applicant did not provide any proper grounds of appeal in her summons or her affirmation in support. She merely stated she did not receive any documents from the court and she disagreed with the judgment. As for her written submissions, the applicant asserted that her life is threatened by an “enemy … very powerful influential and rich” and the police and authority help her enemy. Her claim at all material times relate to her husband who was abusive and had made death threats against her.

Analysis and disposition

11. 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.

12. 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 25 February 2022. The applicant took out a summons in the court below on 25 April 2022. The High Court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022. The 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.

13. The applicant should have filed her summons promptly when the registry was re-opened on 12 April 2022. However, she failed to do so and was late for almost two weeks. Her explanation was that she had contracted COVID-19. She admitted before the judge she had no proof she caught the virus and she did not seek medical treatment at the time.

14. Giving her the benefit of the doubt, and as the delay was not substantial, we will focus on the merits of her intended appeal.

15. In assessing the merits 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.

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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17. The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision and merely made bare assertions in her written submissions. We do not accept her statement that she did not receive any documents from the court, as she has provided to the court an updated address and contact number on 20 January 2022 and 17 February 2022 respectively. More importantly, she has failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

18. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 25 February 2022 and dismiss the summons filed on 29 August 2022.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 586

[2] [2022] HKCFI 1959

[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 being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[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.

[7] [2022] HKCFI 586 at §9

SUMI TAHERA AKHTER v. TORTURE CLAIMS APPEAL BOARD

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