Re Aktar Mst Ruma

CAMP 338/2021

[2022] HKCA 1483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 338 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2452 OF 2018)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions:  27 August 2021

Date of Judgment:  10 October 2022

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J U D G M E N T

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

1.On 4 June 2020, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 22 June 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 5 July 2021. 

3.On 13 August 2021, the applicant filed a summons in CAMP 338/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 13 August 2021, the applicant lodged her written submissions on 27 August 2021. 

5.Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.The applicant is a Bangladeshi national.  She came to Hong Kong on 7 March 2016 as a domestic helper.  Her employment contract was terminated prematurely and she overstayed since 24 April 2016.  On 22 March 2017, she was arrested by Immigration Officers and on 27 March 2017, she lodged a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her brothers-in-law namely, Mostafa and Shahabuddin (“the Brothers”)  over family land and political disputes. The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2020] HKCFI 1027).

7.By a Notice of Decision dated 31 January 2018, the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 10 September 2018.  By its decision dated 22 October 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [64] to [77], the Board found substantial inconsistencies and contradictions in the applicant’s account of events and rejected her case regarding the enmity between her husband and the Brothers due to the land dispute and political differences, and it also rejected her allegation that the Brothers had framed her husband on a criminal charge.  The Board accepted that the Brothers had attempted to sexually assault the applicant, but it was an opportunistic attack and the risk of repetition is remote if the applicant were to reside with her father while her husband is in jail.  The Board also accepted that the applicant might be exposed to stigma and verbal abuse in Bangladesh because her husband is in jail, but did not accept that she would be killed, or subject to serious bodily harm of any kind upon her return.  In any event, the applicant may relocate to other parts of Bangladesh like Sylhet where she could stay with her uncle.  For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 5 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision on the following grounds:

(1)  The hearing bundle was provided to her shortly before the Board’s hearing without translation and therefore she did not have sufficient time to prepare her case.

(2)  There was no legal representation.

(3)  The Board’s decision was unfair.

(4)  The Board had failed to adhere to the high standards of fairness in its assessment of evidence.

The JR Decision

10.The applicant attended an oral hearing on 27 September 2019.  After due consideration of the Director’s and the Board’s decisions, the Judge refused leave for judicial review for reasons set out in [12] - [18] of the JR Decision:

“12. The applicant appeared before me. She confirmed that she was free to express herself before the immigration officer and before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

13.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

14.  In Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board erred in the finding of the facts or in the application of the laws to her case.

16.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review. Ground (1)  fails.

17.  Grounds (2)  and (3)  fail as they are her opinions without any evidence or facts in support of them.

18.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  Having filed a summons in the Court of First Instance for an extension of time to appeal which was dismissed by the Judge on 5 July 2021, she filed a Summons in this court. 

Discussion

12.In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.As for (1), the applicant was late by 4 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was insignificant.

14.As for (2), the reasons for the delay, the applicant explained in her supporting affirmation filed on 22 June 2020 that she only received the JR Decision on 20 June 2020 and then she had to seek her friend’s advice as she is not conversant with the Court’s procedures and she did not have money to engage a lawyer to help her. 

15.The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision. 

16.In her affirmation she attached a one-page grounds of application in which she repeated her factual allegations and said she did not agree with the decision as it made her unhappy, and there were many unacceptable and unexplainable grounds (which were not specified).

17.In her written submissions, she advanced the following grounds for her intended appeal:

(1)  The Judge failed to analyze her claims properly.

(2)  The Judge was wrong as a matter of law for not applying the principle of irrationality to the Director’s decision and the Board’s decision.

(3)  The Judge failed to adhere to the high standards of fairness and reviewed her case lightly.

(4)  The JR Decision has the effect of finally disposing of her claim and entailed significant implications for her substantive right not to be subject to torture and her right to non-refoulement protection.

(5)  The Judge was wrong as a matter of law in not applying the principle of procedural fairness to the Director’s decision whereby the Director and the Board are required to give reasons justifying their decisions.

(6)  Although the applicant faced severe problems in her home country and had submitted all the proofs, the Judge did not take greater care and this disappointed her.

(7)  The Judge’s decision was wrong.

(8)  The Board had failed to give sufficient chance to the applicant to arrange relevant evidence for her hearing.

(9)  Her life and limb are in jeopardy and her fundamental human right not to be subject to torture is involved, and high standards of fairness are required.

(10)  The applicant will face hardship if refouled and the Board had significantly relied on the source of news which is not officially recognized, or it was simply hearsay.

18.As set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14], the salient principles are that the role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Assessment of evidence and COI materials, risk of harm and state protection are primarily within the province of the Board, and the Court would only intervene if there are valid public law grounds.

19.It is clear from the Board’s decision that the applicant’s claim failed on the issue of credibility, and it was found that the applicant had fabricated her account of key events.  Although the Board accepted that the Brothers had attempted to sexually assault the applicant, and she might have faced stigma and verbal abuse because her husband is in jail, it was not satisfied that she would face any real or substantial risk of harm upon her return to Bangladesh.  It is perfectly open on the evidence for the Board to reach its findings and conclusions, and the Judge was right in finding that the Board had not erred in its findings of facts or the application of the law, and in finding that there was no procedural unfairness.

20.The applicant’s written submissions only contained general and bare assertions.  Nothing mentioned in her written submissions can be regarded as valid grounds of appeal.  

21.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

22.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 13 August 2021.

The applicant, unrepresented, acting in person