Alapee Azadi Begum v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 501/2021

[2022] HKCA 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 501 OF 2021

(ON APPEAL FROM HCAL 2721 OF 2018)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  18 November 2021

Date of Judgment:  1 March 2022

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J U D G M E N T

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

1.By a summons dated 4 November 2021, the Applicant applied to this Court for an extension of time to appeal against the decision made by Deputy High Court K W Lung (“the Judge”)  on 16 July 2021 refusing leave to the Applicant to apply for judicial review. On 15 October 2021, the Judge refused to grant the Applicant an extension of time to appeal.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of Bangladesh.  She came to Hong Kong as a foreign domestic helper on 8 December 2012, overstayed and surrendered to the Immigration Department on 20 October 2015.  She raised a non-refoulement claim with the Immigration Department by written representation dated 7 January 2016.  She claimed that if refouled, she and her daughter would be in danger due to threats from her brother-in-law, Nasir Uddin (“Nasir”).  Her husband, who worked in Hong Kong, sent money to Nasir and told her to obtain money from Nasir.  However, when she asked for the money, Nasir was unhappy.  She lived in the home of Nasir and his wife.  She was badly treated by them.  At times, she was slapped on her face by the wives of her brothers-in-law.  Her husband then obtained a working visa for her to come to Hong Kong.  Details of the Applicant’s claim have been summarised by the Judge at §§9-10 of the CALL-1 Form ([2021] HKCFI 1752).

4.By a Notice of Decision dated 31 January 2018, the Director of Immigration (“the Director”)  rejected the Applicant and her daughter’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.The Applicant and her daughter appealed the Director’s Decision to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  The Applicant attended a hearing on 18 June 2019.  At that hearing, she withdrew her appeal and also her daughter’s appeal for the reason that it was safe for them to return to Bangladesh.  The Board, considering that she had made the withdrawal decision on her own free will and with knowledge of the consequences of her decision, approved her application.  The Board also confirmed the Director’s Decision (“the Board’s Decision”).

6.Pausing here, it may be noted that although the Applicant made the non-refoulement claim and appealed the Director’s Decision to the Board also on behalf of her daughter, the daughter is not an applicant in the application for leave to apply for judicial review (see CALL-1 Form, §3).

THE JUDGE’S DECISION

7.On 30 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Director’s Decision. Applying the decision of the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, the Judge held that the Director’s Decision was not susceptible to judicial review, and dismissed the applicant’s application in respect of the Director’s Decision.  The Judge also exercised the power under to Order 20, rule 8 and Order 53, rule 3(6)  of the RHC to amend the Form 86 so that the Board became the putative respondent and the Director the putative interested party, and proceeded to consider the Applicant’s application for leave to apply for judicial review of the Board’s Decision.

8.On 16 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§17-19 of Form CALL-1, the Judge stated as follows:

“17. The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

‘41. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … s 37V(2)(b)  of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if he can fulfil the requirements in sub-ss (a)  and (b)  thereunder.’

18. It is thus quite clear that she applied to the Board of her own accord, knowing that her application was to withdraw her appeal. It is a valid withdrawal of her appeal.

CONCLUSION

19. The Board was correct to accept her application for withdrawal of her appeal.  As such, the Board becomes functus officio.  There is no reasonable chance that her intended [application] would succeed if she challenges the Board’s Decision. Accordingly, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decision.”

THE JUDGE’S EXTENSION DECISION

9.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed or served by the Applicant within the 14-day period.

10.The Applicant filed a summons dated 30 September 2021 applying for extension of time to appeal.  In her affirmation in support of her application, she said that she did not receive the Court’s decision in time (see [2021] HKCFI 2993, at §7).

11.The Judge considered that the Applicant had not raised any viable ground to show that she had any realistic prospect of success in her intended appeal.

12.Accordingly, on 15 October 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

13.By a summons taken out on 4 November 2021, the Applicant applied to this Court for an extension of time to appeal against the decision of the Judge dated 16 July 2021.  In her summons and supporting affirmation filed 4 November 2021, the Applicant stated that she was late because she did not receive the letter from the High Court in time, she did not get help, and she wanted to challenge the decision.

14.In her 3-page written submissions filed 18 November 2021, the Applicant repeated the factual basis of her non-refoulement claim and stated that she did not want to return to Bangladesh.

DISCUSSION

15.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.The prospect of success of the intended appeal is important: the court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

18.The Applicant has not identified any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or raised any viable grounds of appeal in her summons or supporting affirmation or written submissions.

19.There is no reasonable prospect of success in the Applicant’s intended appeal.

DISPOSITION

20.The application for extension of time to appeal is refused, and the Applicant’s summons of 4 November 2021 is dismissed.

The Applicant, acting in person