RE KHATUN MST RUZINA

CAMP 19/2023, [2024] HKCA 683

On Appeal From [2022] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 27 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 18 August 2023, this Court handed down decision ([2023] HKCA 981) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 7 July 2022 refusing her application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.  On 24 August 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s order to the Court of Final Appeal. The applicant has also lodged written submission within time.

3.  Having considered the applicant’s documents, 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 decision.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (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 (quoted verbatim) :

‘ I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

7.  In the applicant’s written submission, the following was stated in summary :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The Decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D‑G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable;

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith; and

12)  ;Late filing of notice of appeal to the Board may only take account of statement of reason and any other relevant matter: section 37ZT.

8.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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 19/2023, [2023] HKCA 981

On Appeal From [2022] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 27 OF 2019)

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________________________

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 4 January 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 27/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 27 December 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 12 September 2017 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 7 July 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 21 July 2022). Being out of time for around 29 days, the applicant took out an application on 19 August 2022 before the Judge requesting an extension of time to appeal. The Judge on 4 January 2023 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 11 January 2023). On 16 January 2023, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

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

2)  Factual background

5.  Briefly stated, the applicant is a Bangladesh national. She last entered Hong Kong in October 2015 as a foreign domestic helper but her contract was prematurely terminated and she overstayed. She raised her non‑refoulement claim on 23 December 2016 and 11 January 2017 alleging that she would be harmed or killed by the Awami League upon her return to Bangladesh because she refused to join the Awami League. She and her husband were attacked a number of times by members of the Awami League.

3)  The Director’s Decision

6.  The Director’s decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed/petitioned against the Director’s decision to the Board. An oral hearing was conducted on 24 August 2018. The Board dismissed the applicant’s appeal/petition. It held that the applicant was not a witness of truth and that she had exaggerated her claim for being at risk of harm. The applicant speculated that no matter where she goes she will be found by her enemies. There were inconsistencies in her evidence regarding the alleged attacks on her. The Board does not accept that she made no effort to contact her own husband and children and that she does not know if they are alive or dead.

5)  Decisions of the Judge

8.  In his decision dated 7 July 2022, the Judge held that the applicant provided broad and vague assertions in her grounds of appeal without any particulars as to how they applied to her case. There was no error of law or procedural unfairness.

9.  In his decision dated 4 January 2023, the Judge held that some four weeks’ delay must be significant and inordinate. The applicant stated in her affirmation that she did not receive the decision within 14 days but without providing any further details, nor did she attend hearing of her summons. The court record showed that the decision was sent to the applicant on the same day without being returned undelivered. It was held that importantly, the applicant failed to put forth any proper ground of appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

11.  The applicant was around 29 days late when she filed her extension of time to appeal application below on 19 August 2022. The applicant made a bare assertion on paper that she did not receive the decision within 14 days. The court record showed that the decision was mailed to him on the same day as Form CALL‑1.

(2)  Prospect of the intended appeal

12.  In the applicant’s summons, the applicant stated that she did not receive the decision within 14 days, and she was only later informed of the decision by searching the court file. In her affirmation, the applicant repeated such allegations. In her written submission, the applicant cited case authorities and statute that are used in non‑refoulement claim without specifying how they relate to her case.

13.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

14.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

15.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

16.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 16 January 2023.

Applicant, unrepresented, acting in person