Begum Farhana v. Torture Claims Appeal Board and Another

CAMP 173/2021

[2022] HKCA 1308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2087 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 25 February 2022 ([2022] HKCA 261). The Court of Appeal dismissed her application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020 ([2020] HKCFI 2057) refusing to grant leave to apply for judicial review concerning her non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 May 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 24 May 2022. Having considered her submissions and the papers, we think it is appropriate to determine this application on paper.

3.The applicant is a national of Bangladesh and arrived in Hong Kong to work as a foreign domestic helper. Her contract was prematurely terminated and she overstayed. She was arrested by the Immigration Department and applied for non-refoulement claim on 14 February 2018. The applicant’s claim is on the basis that she would be harmed or killed by the Awami League, a rival political party in her home village.

4.The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 30 March 2021[1].

5.The applicant renewed her application to the Court of Appeal on 18 May 2021. The application was dismissed by the Court of Appeal on 25 February 2022 as there is no prospect of success in the intended appeal[2].

Grounds of appeal

6.The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  There is error in law in the decision.

(2)  The decision maker just relied on the Country of Origin information (“COI”) which favours the rejection of the applicant’s claim. The actual situation is different from the COI.

(3)  The authorities ignored the evidence of violence towards the minorities. The decision betrayed a biased and formula approach unlikely to fairly assess the danger to the applicant’s life and is clearly calculated to reject her claim.

(4)  She will be harmed or killed by the Awami League if she is returned to Bangladesh.

7.In her written submissions, the applicant reiterated the procedural history of her case and further contended that the adjudicator failed to make sufficient enquiry before finalizing the decision and the court did not provide reasoning as to the COI used by the authorities. Therefore, there was a lack of procedural fairness.

Analysis and disposition

8.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

9.Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), it provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

11.The court registry was temporarily closed due to the COVID-19 pandemic during the general adjournment period between 7 March 2022 and 11 April 2022. The court registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office. In other words, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the court registry was reopened.

12.The applicant was late for almost a month in filing her Notice of Motion on 11 May 2022. Her explanation was that she was late because she tested positive for COVID-19 on 20 February 2022 and was subsequently under home quarantine for 14 days. Further, the High Court Registry was closed during the general adjournment period. However, this is unacceptable as she would have completed her quarantine and should be able to file the Notice of Motion by the time the registry re-opened on 12 April 2022. There was no justification for her further delay of almost a month. Her explanation cannot constitute good ground for the court to grant an extension of time to file the Notice of Motion.

13.In any event, the grounds in the Notice of Motion are devoid of merits as she clearly failed to demonstrate that the Court of Appeal was wrong in dismissing her application. Her contention that there is some error in law is a bare assertion without any particulars or elaboration. The other grounds and submissions do not demonstrate that the Court of Appeal was wrong in dismissing her application and failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

14.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 May 2022.

The Applicant, acting in person