Re Khanam Masuma and Another

CAMP 285/2019

[2021] HKCA 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 285 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 523 OF 2018)

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Before:  Hon Cheung, Chu and Au JJA in Court

Date of Judgment:  4 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):

1.On 12 October 2020, the 1^st applicant on behalf of the 2^nd applicant and herself filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 31 July 2020 (“the Judgment”) [2020] HKCA 653.  In the Judgment, we refused to grant extension of time to the applicants to appeal the decision of Deputy High Court Judge Bruno Chan on 10 May 2019 dismissing their application for leave to apply for judicial review against the Board’s decision of 23 January 2018 (“the Board’s Decision”).

2.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

3.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), leave to appeal to the Court of Final Appeal will only 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.

4.Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 28 August 2020.  The applicants are therefore more than one month out of time.

5.As the applicants did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicants.  In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq [2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

6.In the Notice of Motion, the applicants repeated their personal backgrounds and cited several legal provisions which are not relevant to the present application.  They also raised the following grounds of appeal:

“My life is still in Danger My home Country, I was returned to Bangladesh. I would like to inform 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 claims. Actual life occur different situation then what is mentioned in COL information. The officer and cours perfect to ignore the overwhelming of the evidence of this violence towards minorities Scarching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable.” [sic]

7.In the supporting affirmation filed on the same date, the 1^st applicant stated that the Judgment was fabricated and went against conventional law.  She complained that the Judgment was not sent to her and she could not go back to Bangladesh because of the world-wide pandemic.  She also complained about the lack of language and legal assistance.  In addition, the 1^st applicant exhibited to her affirmation two appointment slips from Western Psychiatric Centre and Queen Mary Hospital for 13 November 2020 and 11 January 2021 respectively, and a Chinese memo from Tuen Mun Social Hygiene Clinics marking apparently her time of visits on 6 July and 3 August 2020.  However, she had not explained the relevance of these documents.  Further, the applicants did not lodge any written submissions by 27 October 2020 as directed by the Registrar of Civil Appeals.

8.We will refuse the present application for the following reasons.

9.First, a delay of one month is not insignificant in the context of the statutory time limit of 28 days.  Insofar as the explanation for delay is concerned, we note from the court files that the Judgment and order, despite sending to the last known address provided by the 1^st applicant were returned marked “no such person”.  Yet, there was no notice for change of address filed by the applicants and the they still used the same last known address in the present Notice of Motion and supporting affirmation.  As it has been said 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.  The appointment slips also do not assist the applicants as the 1^st applicant failed to explain their relevance and we do not see how they could explain the applicants’ delay.  We do not accept the applicants’ reason for delay.

10.Second,we do not see any merits in the applicants’ grounds of appeal.  The only complaints made by the 1^st applicant were that she did not have language assistance and legal assistance.  However, these are not viable grounds of appeal against the Judgment:

(1)  Insofar as the lack of language assistance is concerned, in the present case, all the court documents filed were in English. It is clear that either the 1^st applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  Further, the applicants were assisted by an interpreter before the Deputy Judge.  In any event, it is trite law that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she desires: see [20] of Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264; also [12] of Re Gurung Sagar [2019] HKCA 658.  There is no merit in this complaint.

(2)  As to the lack of legal assistance, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah [2018] HKCA 14; [11] of Re Zahid Abbas [2018] HKCA 15; [11] of Re Tariq Farhan [2018] HKCA 17; and [13] of Re Lopchan Subash [2018] HKCA 37.  In this respect, the applicants were provided with legal representation under the Duty Lawyer Scheme in relation to their claims before the Director.  There is also no merit in this ground.

11.We further take note that the 2^nd applicant in the present case is a minor. The proper approach to children’s non-refoulement claims has recently been considered and explained by this Court in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board, [2020] HKCA 971 (Lam VP, Barma and Au JJA) and in Re Jasvir Singh & others [2021] HKCA 53 (Lam VP and Au JA).

12.We shall not repeat everything that has been said in those cases.  Suffice for the present purpose to note that, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  It is therefore pertinent for the court to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of the legal representation.

13.In our judgment, the latest authorities cannot avail the 2^nd applicant in the present case.  The 2^nd applicant’s non-refoulement claim framed before the Board was that (a) she would not be accepted by the 1^st applicant’s family as she was given birth by a divorced woman with a second marriage, and (b) it would be difficult for her to live with the 1^st applicant, a divorced woman, in other areas in Bangladesh.  Further, she also claimed that the 1^st applicant’s creditor threatened to kidnap her stepsisters (the ones born out of the 1^st applicant’s first marriage) for the loan defaulted by the 1^st applicant.

14.The Board had considered the available documents and the 1^st applicant’s testimony before it.  It dismissed the claim that the creditor would post any harm to the 1^st applicant’s family as she admitted herself that the creditor did not look for her family members after her brother called the police ([25] of the Board’s Decision). Thus, the fear that the 2^nd applicant would risk being kidnapped by the creditor also could not stand.  Further, the Board examined extensively the country of origin information including those from the Ministry of Women and Children Affairs and concluded that state protection and internal relocation were both available to the 1^st and 2^nd applicants ([30] of the Board’s Decision).  In particular, the Board took into account the 1^st applicant’s age, education background and previous working experience and found that it would not be unduly harsh for the 1^st applicant and the 2^nd applicant to relocate to other parts of Bangladesh to avoid the Creditor and their relatives ([48] ‑ [50] of the Board’s Decision).

15.In any event, the 2^nd applicant was born in Hong Kong and she has never been to Bangladesh.  There is no evidence suggesting that she will face any risk of harm other than those already rejected by the Board upon refoulement.  Thus, in our view, the Board had properly assessed the 2^nd applicant’s claim independently and separately and duly given reasons for rejecting her claim.  There is nothing to indicate that the merits of the 2^nd applicant’s claim were not fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met.

16.Further, we have 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 child but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

17.In the premises, the applicants have not raised any reasonably arguable ground of appeal on the merit of their claims, or any discernible or arguable ground for disturbing the Judgment.

18.We also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

19.For these reasons, it will be futile to extend time. We therefore refuse to grant leave to appeal to the CFA out of time, and dismiss the application.

The 1^st and 2^nd applicants acting in person