Re Islam Asia

CAMP 29/2021

[2021] HKCA 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 848 OF 2018)

____________________

____________________

Before :  Hon Cheung and Chu JJA in Court

Date of Decision :  30 July 2021

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.1On 16 May 2018, the applicant issued her application for leave for judicial review by Form 86.  

1.2The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 7 May 2018 dismissing her appeal against the decisions of the Director of Immigration (‘the Director’) dated 29 September 2017 rejecting her non-refoulement claim.  The application was brought within time.

1.3On 1 September 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4Being out of time, the applicant took out an application on 21 September 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 14 January 2021 rejected the applicant’s application for an extension of time to appeal.  

1.5On 25 January 2021, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.  She lodged her written submissions on 8 April 2021.

1.6Under 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

2.Briefly stated, the applicant is a Bangladesh national.  She came into Hong Kong on 9 August 2014 for employment as a foreign domestic worker.  Her contract prematurely terminated and she overstayed.  She subsequently raised a non‑refoulement claim on 14 June 2016 based on her fear that she would be harmed or killed by Ms. Razia Sultana and the family of her husband.

3)  The Director’s Decision

3.The Director decided against the applicant’s non‑refoulement claim on 29 September 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, Bill of Rights (‘BOR’) Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.The applicant appealed against the Director’s Decision to the Board on 10 October 2017.  An oral hearing was conducted on 14 March 2018 for the Board’s assessment of all applicable grounds. In gist, the Board found that the applicant was not a reliable witness.  The Board found her evidence embellished, exaggerated and fabricated in part to create a claim for non‑refoulement protection.  The evidence that the applicant’s husband or the applicant stole money belonging to her employer was incredible.  The applicant failed to prove her case on all applicable grounds.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.

5)  Decisions of the Judge

5.1In his decision dated 1 September 2020, the Judge held that the applicant provided no grounds in her Form 86 nor in her supporting affirmation.  No error of the Board was shown.  

5.2In his decision dated 14 January 2021, the Judge held that the applicant’s delay was relatively insignificant.  However, the applicant provided no draft grounds of appeal.  There was no identification of any error in his decision.  

6)  Legal principles

6.In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

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

7)  Analysis

(1)     Length of delay and reasons for the delay

7.1The Judge was correct to rule that the delay was relatively insignificant and the focus should be on the merits of the intended appeal.

(2)     Prospect of the intended appeal

7.2In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3The applicant in her summons stated that the Judge was wrong to have accepted the Board’s finding.  She stated that the Judge failed to consider all applicable grounds.  No particulars nor explanations were provided.

7.4In the applicant’s supporting affirmation, she simply stated that her life was in danger and she will face hardship when refouled.  No particulars were provided.

7.5The gist of the applicant’s written submission is that the Board acted in a procedurally unfair manner and had not properly assessed the credibility of the applicant.  She did not give particulars of her complaint.

7.6The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 25 January 2021.

The applicant, unrepresented, acting in person