Re Begum Fatema

CAMP 61/2022

[2022] HKCA 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 61 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2964 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  8 September 2022

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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.By a summons filed on 18 February 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”)  dated 4 October 2021 refusing her application for leave to apply for judicial review ([2021] HKCFI 2944)  (“the Leave Decision”). By a subsequent judgment dated 8 February 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 390)  (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 26 November 2018 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 7 March 2017 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

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

Background

4.The applicant is a national of Bangladesh.  She last arrived in Hong Kong as a domestic helper and was permitted to remain until 17 November 2017 or two weeks after termination of contract, whichever was earlier.  On 20 April 2016, her contract was prematurely terminated.  She did not depart and overstayed since 5 May 2016.  She surrendered to the Immigration Department on 13 July 2016 and lodged a non-refoulement claim on 2 November 2016 on the basis that she feared that she would be harmed or killed by Kamal and his men upon her return to Bangladesh due to money disputes between Kamal and her family.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] - [10] of the Leave Decision.

5.By a Notice of Decision dated 7 March 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.On 20 March 2017, the applicant appealed against the Director’s Decisions to the Board.  On 8 August 2018, she attended an oral hearing before the Board.  On 26 November 2018, the Board dismissed her appeal.  The Board found that the applicant’s father should remain as the principal debtor and the one whom Kamal looked to for repayment.  The Board also considered that the applicant’s family could be able to repay the loan.  Having assessed the evidence, the Board was satisfied that the applicant failed to substantiate that she would face genuine and substantial risk to life at home in Bangladesh.  As the applicant had failed to substantiate her claim on all applicable grounds, the Board dismissed her appeal.

The Leave Decision

7.On 24 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  However, no ground of challenge was put forth by the applicant in her Form 86 or supporting affirmation.

8.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [15] - [18] of the Leave Decision:

“15. The applicant filed the leave application for judicial review on 24/12/2018. In her affirmation, she did not point out any error in the TCAB decision.

16. In judicial review, this court is to decide whether there is any error in law and procedure, whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

17. I agree with the comments of the adjudicator. The applicant’s evidence could not support a real risk of harm. In my judgment, there is no error of law or procedure. The decisions are reasonable.

Conclusion

18.    The application is not reasonably arguable. There is no reasonable prospect of success.  I refuse leave for judicial review.”

The EOT Decision

9.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.On 12 November 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was almost a month late with her intended appeal.  In her summons, she alleged that she did not receive the Leave Decision.  In her supporting affirmation she further claimed that she did not receive the Leave Decision as she had moved to a new address.

11.By the EOT Decision, the Deputy Judge considered the delay substantial and given that she failed to inform the Court as to her change in address, she must bear the consequence of any problem in the mail.  In any event, given that there was no merit in her intended judicial review, after considering all factors, the Deputy Judge refused her application for extension of time.

The Present Application

12.By a summons and supporting affirmation both filed on 18 February 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  Again, she claimed in her summons that she did not receive the Leave Decision from the Court and failed to appeal in time.

13.Pursuant to the directions made by the Registrar of Civil Appeals on 18 February 2022, the applicant lodged her written submissions on 4 March 2022.  In those submissions, she only repeated the alleged factual basis and procedural history of her non-refoulement claim and requested the Court to grant leave and that it was her right to appeal.

Discussion

14.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 success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.The applicant’s delay of nearly one month was substantial and the applicant did not provide any good reason for her delay.  As repeatedly emphasised by the Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].  Accordingly, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.The 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].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.Nowhere in the summons or supporting affirmation for the present application did the applicant identify any error in the Leave Decision with specific particulars.  General and bare assertions of her fear if refouled to her home country do not constitute valid grounds of appeal.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 18 February 2022 is dismissed.

The applicant acting in person