Begum Khadija v. Torture Claims Appeal Board

HCAL 876/2017

[2018] HKCFI 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 876 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 30-year-old national of Bangladesh who last arrived in Hong Kong on 6 December 2013 with permission to remain for employment as a domestic helper until 6 December 2015 or within two weeks of early termination of her employment contract, but when it was terminated on 24 March 2014, she did not depart but instead overstayed until 31 July 2014 when she was arrested by police and referred to the Immigration Department for investigation.  On 5 August 2014 she lodged her non-refoulement claim on the ground that if she returned to Bangladesh she would be harmed or killed by certain members of her rival political party Awami League (“AL”) for filing a case against them in Bangladesh.  On 2 September 2014 she was released on recognizance pending determination of her claim.

2.The applicant was born and raised in Village Harinafulia, Barisal, Bangladesh to a family of members and supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving school she worked as a cook, a supervisor and a domestic helper and in 2000 she became a committee member of BNP.

3.During the 2008 general parliamentary election when the applicant and other family members were working in the local election for BNP, her father was beaten up by some AL members.  After identifying the three AL members as the culprits, the applicant lodged a complaint to the police and later filed a suit against them with the Barisal City court.  However, after AL came into power in that election, her court case was dismissed.

4.One day in 2009 the applicant’s mother was beaten by the three AL members in front of her house but the matter was not reported to the police as the applicant’s family did not think the police would do anything after AL became the ruling party, but her family decided to move to Sylhet District to avoid trouble with those AL members.  However, in 2011 the AL members in revenge filed a court case in Dhaka against the applicant’s family with a false claim against her and her other family members for kidnapping the daughter of one of their families, and that one day in early 2011 the applicant was ambushed by those AL members in Shahadapur and was beaten badly that she had to be taken to the hospital for treatments. 

5.After the incident the applicant took shelter at her friend’s place in Dhaka before deciding to leave Bangladesh for her own safety for India in late 2011 where she stayed for seven months until her visa there expired and she returned to Bangladesh where she took shelter at her aunt’s place and worked as a cook.  One night in late 2012 the applicant’s brother went out with a friend but never returned, and two days later his dead body was discovered in the forest.  After the applicant was later told by some neighbours that her brother was last seen taken by his friend to meet those three AL members, she moved the rest of her family to Dhaka for their own safety, and then lodged a report to the police accusing the three AL members of murdering her brother, who were then arrested by the police and were subsequently charged and convicted for the murder and were sentenced to seven months’ imprisonment.

6.However, upon their release from prison these three AL members swore to take revenge against the applicant and her family. As a result the applicant decided to leave Bangladesh again for her own safety and applied through employment agency to work as a domestic helper in Hong Kong, and so she arrived on 6 December 2013 to start her employment, and when it was terminated on 24 March 2014 she overstayed and subsequently lodged her non-refoulement claim.

7.By a Notice of Decision dated 30 September 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). 

8.In his detailed decision the Director found the applicant’s accounts about her fear of harm from those AL members inconsistent, and that even if her accounts were true, in the absence of any reliable evidence of state or police was involved in those actions of the AL members, state protection would be available to her upon return to Bangladesh, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available for her to relocate to Bangladesh with a large population of more than 166 million people spread over a vast territory of 140,000 square kilometers in districts away from her home town where she can live and work free from any threats from those AL members.

9.By a Notice of Further Decision dated 31 October 2016 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which she filed her appeal on 14 October 2015 and attended two oral hearings on 13 and 17 February 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board.  On 15 March 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.As explained in the Board’s decision, and having heard her in evidence the adjudicator found the applicant an unreliable witness as her current account is at variance with her original claim as detailed from paragraph 81 to 94 of the decision, and that even if she had shown there was a real risk from those three AL members that she might face on her return to Bangladesh, the Board was satisfied that state protection and internal relocation alternatives would be available for the applicant’s safe return to Bangladesh albeit away from her home district.

12.On 13 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, which was some five months out of time but for which she did not seek leave for extension of time nor file any affirmation to explain for such delay, and in her affirmation of the same date in support of her leave application, she provided eight grounds for her intended challenge which can essentially be summarized as follows:

(a) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research or inquiry into COI or to have regard to relevant and up-to-date COI in considering her claim;

(b) irrationality in the adjudicator’s failure to take into account of or being selective of or to place proper weight in the relevant COI in considering her claim;

(c) irrationality in the adjudicator’s failure to evaluate or make proper finding of facts as to whether there exists in Bangladesh a consistent pattern of violation of human rights;

(d) irrationality in the adjudicator’s failure to assess whether state protection truly and effectively exists in Bangladesh;

(e) irrationality for the Board to take into account of or to place weight in irrelevant facts and information in considering her claim;

(f) procedural impropriety in the Board’s failure to call for psychological and psychiatric evaluations of her claim;

(g) procedural impropriety/unfairness in the adjudicator’s application of the wrong or incorrect standard of proof in the decision; and

(h) procedural impropriety/unfairness in the lack of or insufficient legal representation from the assigned duty lawyer for her so that she was not afforded a fair procedure. 

13.As noted above the applicant was five months out of time from 15 June 2017 being the last date for her to file her leave application for judicial review of the Board’s decision, as stipulated by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A as follows:

“ An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

14.Section 21K(6) of the High Court Ordinance, Cap 4 also provides that:

“ Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

15.The relationship between these provisions was explained in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319, and approved by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738, which held that whenever there is a failure to act promptly or within three months, there is “undue delay”, and that even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”, and the court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the ground of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration: see AW v Director of Immigration CACV 63/2015.

16.As noted above the applicant has never filed any application for extension of time for her leave application for judicial review or any affirmation to explain her delay, and only at the oral hearing for her leave application before me when she only mentioned not being able to find someone to help her with her application until November 2017 when she met a fellow countryman in the same position who was willing to help drafted her application and affirmation.  Other than that she did not offer any further details.

17.In Re Thomas Lai [2014] 6 HKC 1, G Lam J set out the principles to be applied in an application to extend time for judicial review, in which His Lordship listed the following factors which are not exhaustive but are likely to be of significance:

(a) Length of the delay: the longer the delay the more cogent the reason has to be for extending time.

(b) Explanation for the delay: a good reason rather than a good excuse for the delay, as it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted under the court’s discretion.

(c) Merits of the substantive application: although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion, as where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be or that even though he may have a meritorious case.

(d) Prejudice: the question of prejudice has two sides, the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(e) Question of general public importance: whether the application raises questions of general public importance and whether those questions are likely to have to be resolved by the courts in any event.

18.The principles and approach stated in Thomas Lai have since been applied in recent cases, and endorsed by the Court of Appeal in AW v Director of Immigration, supra, and in which it was held that in an application of this kind, the court is engaged in the exercise of discretion whether to grant indulgence in the form of an extension of time to the applicant, and it is entirely appropriate that the court may need to delve deeper into the merits of the substantive challenge to consider what weight should be given to this factor when weighed against other factors in a given situation: paragraph 36 per Kwan JA.   

19.As already noted above the delay of five months in the present case cannot be said to be insignificant, for which the applicant has not provided any good reason but rather just an excuse, and more importantly none of her proposed grounds for her intended challenge shows any merits at all, as in the absence of any particulars or specifics they are in my judgment merely vague empty statements without showing where and how the Board got it wrong or irrational or unfair in the process of arriving at its decision.  It is simply not sufficient, for instance, for the applicant to complain of the adjudicator being selective or relied on outdated COI without stating how he was so or what those COI were, or in what way was the decision irrational or unfair based on the facts before the Board, while the complaint about no psychological or psychiatric reports being called for during the process is entirely without any basis.

20.In the premises and for these reasons, I am not satisfied that the applicant has demonstrated any good reason for her undue delay in bringing her leave application for judicial review, nor are there any merits of her substantive application which may justify the court granting her indulgence in the form of extension of time.  Her leave application is accordingly refused.

Dated the 20^th day of April 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1