Re Begum Mst Sinthia and Another

CAMP 92/2020

[2021] HKCA 207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 92 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 651 OF 2018)

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Before: Hon Cheung and Au JJA in Court

Date of Written Submissions: 13 August 2020

Date of Judgment: 1 March 2021

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J U D G M E N T

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

Introduction

1.On 28 June 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1037), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2017 (“the Director’s Decision”).

2.Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”), the 14-day time period for the applicants to appeal the Deputy Judge’s Decision expired on 12 July 2019.  On 28 November 2019, the applicants sought extension of time to appeal the Deputy Judge’s Decision.  They were about four months out of time.

3.On 29 June 2020, the Deputy Judge refused to grant extension of time to the applicants (“the Extension of Time Decision”).

4.By a summons dated 10 July 2020 (“the CA Summons”), the applicants renewed their application before this Court.  Directions were given by the Registrar of Civil Appeals to the applicants on 29 July 2020 concerning the conduct of the application.  Paragraph 5 of those directions stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers.  Under Order 59, rule 14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  After considering the available documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.The 1^st applicant and 2^nd applicant are mother and daughter of Bangladesh origin.  The 1^st applicant came to Hong Kong as a domestic helper on 4 July 2014 but overstayed after her contract was terminated.  She surrendered to the Immigration Department on 21 February 2016 and raised her non-refoulement claim on 30 June 2016.  Subsequently on 27 December 2016, she gave birth to the 2^nd applicant and made a non-refoulement claim on 10 February 2017 on her daughter’s behalf.  The 2^nd applicant’s claim was dependant on the 1^st applicant’s claim.

6.They were legally represented before the Director, but not before the Board.  In the appeal before the Board, the 1^st applicant acted for the 2^nd applicant.

7.The 1^st applicant’s claim was based on the fear that if they returned to Bangladesh, they would be harmed or killed by the 1^st applicant’s neighbour Nannu, a member of Awami League (“AL”), who had a land dispute with the 1^st applicant.  The factual background was summarized at paragraph 8 of the Director’s Decision and paragraphs 26 - 35 of the Board’s Decision.

8.The 1^st applicant claimed that her family had a land dispute with Nannu after the death of her father in 2004.  In order to avoid Nannu, her family relocated and changed phone numbers but these measures were of no avail.  The 1^st applicant had no choice but went to work in Lebanon in 2010.  She returned home in 2013 and was abducted by Nannu and his associates.  Although they let her go, Nannu extorted money from her.  In the end, the 1^st applicant’s mother transferred the land to Nannu.  Yet, he continued to demand money and harass her family.  Out of fear, she fled to Hong Kong for protection.  She married her husband in Hong Kong on 28 December 2014 and gave birth to the 2^nd applicant on 27 December 2016.

The Director’s Decision and the Board’s Decision

9.By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non-refoulement claims on the BOR 3 risk[1], persecution risk[2], torture risk[3] and the BOR 2 risk[4].  The Director assessed the claim of the 2^nd applicant as part of the 1^st applicant’s claim and did not process separately.

10.The applicants lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 20 December 2017, during which the 1^st applicant answered the Board’s questions with the assistance of an interpreter.  After hearing the 1^st applicant, and considering the applicants’ evidence in the non-refoulement claim forms, the Board found that the 1^st applicant’s evidence on the dispute over the property with Nannu was vague and unsubstantiated.  There was in any event no state involvement.  Further, the 1^st applicant had never suffered any personal harm and the only physical contact she alleged to have encountered was the attempted abduction when she returned home from Lebanon but such event was not repeated before she fled to Hong Kong.  The Board found that the totality of the evidence would not lead to a conclusion that, even if the 1^st applicant’s version of events were entirely credible, she would suffer any serious harm or even a minimal level of harm from Nannu.  In any event, after considering the relevant country of origin information (“COI”), the Board found that state protection and internal relocation were available to the applicants (paragraphs 48 and 53 of the Board’s Decision).  The Board therefore dismissed the appeal.

The Deputy Judge’s Decision

11.On 17 April 2018, by way of a Form 86, the applicants sought to challenge the Board’s Decision by way of judicial review. The grounds of review attached to the Form 86 were succinctly summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision:

10. On 17 April 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1) procedural unfairness in that the adjudicator had unlawfully fettered his discretion by refusing their appeal on the grounds that they did not satisfy the requirement, that he acted in a procedurally unfair manner in dealing with their appeal, that his decision to refuse their appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness, and that the adjudicator failed to meet the greater care and duty owed to a self-represented claimant;

(2) procedural impropriety in that the Board had significantly relied on source of news not officially recognized or is simply hearsay or outdated that resulted in groundless speculations that it would be safe for them to return to their home country; and

(3) procedural unfairness in providing the hearing bundle to them only a few days before the appeal hearing without translation or interpretation.”

12.After hearing the 1^st applicant on 29 March 2019 and considering the documents, the Deputy Judge refused to grant leave to them to apply for judicial review.  He set out his reasons at paragraphs 11 - 16 of the Deputy Judge’s Decision:

“11. The complaints under the first two grounds are however just broad and vague assertions of the applicants containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or how the adjudicator had unlawfully fettered his discretion, or why was his decision unfair or unreasonable in the public law sense, or in what way did the adjudicator fail to take into account of relevant COI or which information were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of the complaints under either ground.

12. As for their complaint under Ground (3) about the hearing bundle being provided to them only a few days before the appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English without translation and thereby given them insufficient time to prepare for their appeal.

13. Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decision should by then be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at the oral hearing A1 never raised any issue or requested the adjudicator for further time to enable her to better prepare for the appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

14. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

Application for extension of time

13.On 28 November 2019, the applicants took out the summons to seek extension of time to appeal the Deputy Judge’s Decision.  In the summons and supporting affirmation, the 1^st applicant explained that they did not receive the Deputy Judge’s Decision but she did not advance any grounds of appeal.  The Deputy Judge heard the applicants on 31 December 2019 and considered their explanation for the delay.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicants’ summons.  He found that the delay was substantial and refused to accept their explanation as the Deputy Judge’s Decision was sent to the applicants’ last reported address which the 1^st applicant confirmed as correct at the hearing.  In any event, the applicants failed to put forward any grounds of appeal.  Thus, the Deputy Judge concluded that it would be futile to extend time as there was no prospect of success in the intended appeal.

Renewed application for extension of time to this Court

14.On 10 July 2020, the applicants renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons and the supporting affirmation, the 1^st applicant asserted that the Deputy Judge’s Decision was lost in the mail.  In the written submissions of 13 August 2020, the 1^st applicant quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap 115) which is about the late filing of notice of appeal to the Board.  However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist their case.

Legal principles

15.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

16.Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

17.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the RHC.

Discussion

18.A delay of about four months is significant especially in the context of a statutory time limit of 14 days.  The 1^st applicant’s explanation for delay was that she did not receive the Deputy Judge’s Decision.  However, we note that the Deputy Judge’s Decision was sent to two addresses of the applicants on 28 June 2019 which were both provided by the 1^st applicant to the court[6].  The applicants did not notify the court of any change of address nor was the Deputy Judge’s Decision returned undelivered by the post.  As it has been said by this Court repeatedly, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Ahmed Syed Rafiq [2018] HKCA 178.  We therefore refuse to accept the applicants’ explanation for such a substantial delay.  We now turn to consider the merits of the intended appeal.

19.We shall first deal with the 1^st applicant’s application before considering the position of the 2^nd applicant who is a minor.

20.As mentioned above, the 1^st applicant failed to advance any draft grounds of appeal to identify with sufficient particularities any alleged errors committed by the Deputy Judge.  The submissions raised in their written submissions are general legal propositions and she failed to identify how they were relevant to or would assist this application.

21.Thus, the applicants failed to advance any viable grounds of appeal in support of this application.  It would be futile to extend time.  We will dismiss the 1^st applicant’s application to appeal out of time.

22.It is, however, necessary for us to separately consider the 2^nd applicant’s position as she is a minor (born on 27 December 2016) and has not been legally represented in these proceedings as required under Order 80, rule 2 of the RHC.  This raises the question that, in the case where the parents’ applications for leave to judicially review the Board’s decision has been found to be without merit and should be dismissed, what is the court’s approach to the minor’s leave application to apply for judicial review when, in non-compliance with the rule, he is not legally represented in the proceedings.

23.This issue has recently been considered by this Court (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA).  In summary, the Court has laid down the following approach.

24.First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf.  In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant.

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations.

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

25.Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulment claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47] - [54].

26.If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials[7], with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50] - [53] and [56] - [57].

27.Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 of the RHC as a mere irregularity: Re Jassal Tajinder Kumar [2021] HKCA 124, per G Lam J at [27] and the authorities cited therein.  See also the discussion in Fabio Arlyn Timogan at [57].

28.Bearing this approach in mind, for the following reasons, we are of the view that the 2^nd applicant’s non-refoulement claim in the present case had been properly dealt with by the Board.

29.As mentioned earlier, the 2^nd applicant’s claim was premised fundamentally on that of the 1^st applicant that she would be harmed or killed by Nannu upon refoulment.  There was no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf.

30.In our view, on a fair reading of the Board’s Decision, while it did not assess the 2^nd applicant’s claim separately in substance it addressed the concern of the 2^nd applicant as a member of the 1^st applicant’s family.  The Board had considered extensively the evidence filed before it and the oral evidence given by the 1^st applicant at hearing.  The only source of fear claimed by the 1^st applicant for the 2^nd applicant was from Nannu.  However, on the evidence, the Board concluded that the events regarding the dispute over the property happened years ago and, since the 1^st applicant claimed that the property had already transferred to Nannu without the 1^st applicant’s family seeking recovery, there would be no reason for any future harassment of the 1^st or 2^nd applicant by Nannu.  The Board also noted that the 2^nd applicant was born to a union of marriage in Hong Kong and that the 1^st and 2^nd applicants were not without protection if they were relocated to other areas of Bangladesh.  See paragraphs 46 and 48 of the Board’s Decision.  More importantly, since the birthplace of the 2^nd applicant was Hong Kong, and there was no evidence suggesting that she had been to Bangladesh, it would be improbable to argue that the 2^nd applicant would suffer any risk of harm if she returned to Bangladesh other than those already rightly rejected by the Board.

31.Further, we have also looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

32.In the premises, we also find that the 2^nd applicant’s intended judicial review has no arguable merit and so is the intended appeal against the Deputy Judge’s Decision.  We will therefore treat the absence of legal representation for the 2^nd applicant in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.

33.For these reasons, it is also futile to extend time for her to appeal and we refuse to extend time to the 2^nd applicant to appeal the Deputy Judge’s Decision.

34.We will therefore dismiss the Summons.

35.Since the present application is totally without merit, we further make an order under Order 59, rule 2A(8) of the RHC that the applicant may not request our determination to be reconsidered at an oral hearing.

The applicants acting in person