Case Detail

CAMP 385/2022, [2023] HKCA 1172

On appeal from [2022] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 385 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1089 OF 2019)

________________________

BETWEEN
	Akther Samima	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submissions:	9 May 2023
Date of Judgment:	13 October 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 15 March 2023 ([2023] HKCA 350). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 16 June 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 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 9 May 2023. Having considered her written submissions and the papers, 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 on 9 August 2014 to be employed as a foreign domestic helper but her employment contract was prematurely terminated on the date of arrival. She then overstayed and was subsequently arrested by the police on 9 September 2014. On 11 September 2014, the applicant raised a non-refoulement claim on the basis that she would be ill-treated or killed by members of the Awami League as her father was in the opposing political party.

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 11 August 2022 [1].

5. On 27 September 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed on 15 March 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 26 April 2023, the applicant stated that she did not get justice so she wants to go to the Court of Final Appeal to get justice.

7. In her written submissions, she reiterated the background and procedural history of her case. She also submitted that she wants to go to the Court of Final Appeal to speak for the interest of all asylum seekers.

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. 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).

9. 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.

10. The applicant was late for 2 weeks in filing the Notice of Motion but did not provide any explanation for the delay. In these circumstances, there is no good ground for the court to grant extension of time for her to file the Notice of Motion.

11. In any event, the applicant does not have any valid grounds in the present application. Her allegation that she did not get justice is just a bare assertion without particulars or evidence in support. She failed to point out any mistakes in the judgment of the Court of 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).

12. 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 26 April 2023.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2331

CAMP 385/2022

[2023] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 385 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1089 OF 2019)

________________________

BETWEEN
	Akther Samima	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submissions:	12 October 2022
Date of Judgment:	15 March 2023

__________________

J U D G M E N T

__________________

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

1. On 16 June 2022, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 12 April 2019 (“the Board’s BOR 2 Decision”) concerning her non‑refoulement protection claim under the BOR 2 risk[1].

2. On 11 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that she has any reasonable prospect of success in her intended appeal[2].

3. On 27 September 2022, the applicant filed the present summons with the Court of Appeal to essentially challenge the judge’s decision dated 11 August 2022. In light of the decision 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 16 June 2022.

4. The applicant is a national of Bangladesh. She is 39 years old. She entered Hong Kong on 9 August 2014 to be employed as a foreign domestic helper but her contract of employment was prematurely terminated on the date of arrival. She then overstayed and was subsequently arrested by the police on 9 September 2014. On 11 September 2014, the applicant raised a non-refoulement claim on the basis that she would be ill-treated or even killed by members of the Awami League as her father was in an opposing political party, the Jatiya Party.

5. By a Notice of Decision dated 21 May 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5] (“Director’s First Decision”).

6. By a Notice of Further Decision dated 16 October 2017, the Director found that the applicant’s claim did not engage BOR 2 risk[6] as there was no evidence to show that her right to life would be violated upon her return to Bangladesh (“Director’s Second Decision”).

7. The applicant appealed against the Director’s First Decision to the Board and attended the hearing before the Board on 13 October 2016. The Board did not find the evidence of the applicant credible. In particular, the Board found that the Awami League members had merely harassed and teased her by verbal threats, which were common in Bangladesh at the material time. The applicant also admitted that her purpose to come to Hong Kong was for work. In any event, the Board found there was adequate state protection and internal relocation was not unduly harsh for the applicant. Therefore, the Board agreed with the Director’s First Decision and rejected the appeal on 28 April 2017.

8. As for the applicant’s appeal against the Director’s Second Decision, she only made bare allegations without evidence in support why she could not return to Bangladesh. Therefore, the Board again agreed with the Director’s Second Decision that the BOR 2 risk was not engaged and dismissed her appeal.

The judge’s decision

9. On 24 April 2019, the applicant applied for leave to apply for judicial review against the Board’s BOR 2 Decision. There were no grounds provided for seeking relief in the applicant’s Form 86 and in her supporting affirmation, she simply stated she wishes to have the decisions of the authorities set aside. The applicant requested an oral hearing but failed to attend, the judge therefore dealt with the application on paper.

10. The judge held that there was no ground in support of the application as no error of law or procedural unfairness by the Board was found. The judge further held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 16 June 2022.

Grounds of appeal

11. The applicant did not provide any grounds of appeal in her summons or her supporting affirmation, other than stating that she did not get the decision from the Court, which was already contended before the judge below. As the judge stated, the Court’s decision was sent to her last known address on 16 June 2022 according to the record. As for the applicant’s written submissions, she again repeated the basis of claim and the risk of harm if she is returned to Bangladesh.

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. 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 16 June 2022. The applicant took out a summons in the court below on 19 July 2022. She was late for over 2 weeks. While this is not the most serious delay, the applicant did not provide any explanation nor justification.

14. As the applicant’s 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.

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 in refusing to grant leave against her to bring judicial review. As to her allegation that she did not receive the Court documents, this has been dealt with by the judge in his decision dated 11 August 2022 at §5.

18. In the circumstances, 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 16 June 2022 and dismiss the summons filed on 27 September 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 1816

[2] [2022] HKCFI 2331

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

[4] This refers to the 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.

[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.

AKTHER SAMIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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