Re Sumi Begum

CAMP 366/2021

[2022] HKCA 1492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 366 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2868 OF 2018)

________________________

________________________

Before:  Hon Yuen and Barma JJA in Court

Date of Written Submissions:  13 September 2021

Date of Judgment:  10 October 2022

________________________

J U D G M E N T

________________________

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

1.On 6 August 2020, DHCJ K.W. Lung (“Judge Lung”)  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 14 October 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ P Li (“Judge Li”)  on 13 July 2021. 

3.On 31 August 2021, the applicant filed a summons in CAMP 366/2021 (“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 31 August 2021, the applicant lodged her written submissions on 13 September 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 19 May 2006 as she was employed as a foreign domestic helper.  Her employment contract was terminated prematurely and she was permitted to stay until 20 November 2007 upon her repeated applications for extension of stay in order to deal with her labour dispute case.  However, she overstayed after 21 November 2007.  She surrendered to the Immigration Department in February 2015 and lodged her non-refoulement claim by written significations dated 23 April 2015 and 26 February 2018 alleging that if refouled, she would be harmed or even killed by her brother-in-law with whom she had a bad relationship, leading to his having once thrown a knife at her.  The factual background of this case was succinctly summarised by Judge Lung at [4] of the JR Decision ([2020] HKCFI 1874).

7.By a Notice of Decision dated 6 July 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 5 October 2018.  By its decision dated 29 November 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [31] to [41], the Board found no basis for the applicant’s alleged fear of her brother-in-law. Her husband died of liver cancer in 1999.  Her in-law’s family accused her of killing her husband, detained her, and prevented her from taking the children away.  There was one incident in 1999 when her brother-in-law threw a knife at her and threatened to kill her if she took the children away.  She therefore left on her own, and thereafter she did not encounter her in-laws for some 5 years, nor did she receive any threats from them.  The Board took the view that as her children were now in their 20’s, they should be able to see each other if they wished, although the applicant had no contact with them for the past decade.  In addition, country of origin information (“COI”)  indicated that the Bangladeshi government had instituted a police reform program to make the police more accountable and professional, and there is reasonable state protection upon her return.  Internal relocation was also possible [48-51].  For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 14 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions.  She did not provide any ground of relief in the Form and supporting affirmations.

The JR Decision

10.The applicant did not request an oral hearing and Judge Lung disposed of the application on paper.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6)  of the Rules of High Court (Cap.4A)  (“RHC”), Judge Lung ordered the Form 86 to be amended by replacing the Director with the Board as the proposed respondent, with the Director becoming an interested party.  After due consideration of the decisions of the Director and the Board, Judge Lung refused leave for judicial review for reasons set out in [12] - [16] of the JR Decision:

“12. I shall bear in mind that the Board’s Decision must be considered with rigorous examination and anxious scrutiny.

13.  As the Board did not accept that she was under any real risk if she returned to Bangladesh, her claim must fail.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. There is nothing to show that the Board had committed any error of law or procedural unfairness.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  The applicant fails to show that she has any reasonable prospect 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.  She filed a summons in the Court of First Instance on 14 October 2020 for an extension of time to appeal.  That was dismissed by Judge Li on 13 July 2021.  Hence, the Summons to 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), even excluding the summer vacation (1 – 31 August), as specified in Order 3 rule 3, RHC, the applicant was late by 1 month between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance. Her delay was substantial.   

14.As for (2), the reasons for the delay, the applicant alleged in her supporting affirmation filed on 14 October 2020 that she only received the JR Decision from her landlord on 9 October 2020.  The court file showed that the JR Decision was sent to the applicant on 6 August 2020 at her last reported address, which is the same as the one stated in her summons for extension of time.  No good reason was shown why her landlord would hold the letter for so long.  We do not consider there is any good reason for the delay.    

15.The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  Although in her affirmation filed in support of her summons filed on 14 October 2020, she claimed to have taken legal advice and she understands there “is a good grounds [sic] of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, she did not formulate any specific ground. 

16.In the Summons and supporting affirmation filed in this Court, the applicant advanced the following grounds of her intended appeal:

(1)  She disagreed with the decision which was irrationally made.

(2)  There are many unacceptable and unexplained grounds in the decision made by Judge Li in refusing her application.

(3)  She is a genuine non-refoulement claimant and she faced danger, harassment and torture in her home country.  She was unable to find a safe place to stay in her country and therefore she fled abroad to save her life.

(4)  She would be killed by her enemy if she did not run away.

17.In her written submissions, she reiterated that her present situation in her home country is dangerous, and her enemy is still looking for her.  She did not consider the Bangladeshi government/police would protect her.  She further 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 in not applying the principle of irrationality to the Director’s decision and the Board’s decision.

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

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

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

(6)  Even though the applicant faced severe problem in her home country and had submitted all the proof, the Judge did not take greater care and 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)  Life and limb are in jeopardy, and the applicant’s 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 is simply hearsay.

18.As set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14], the salient principle is 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 unless there are valid public law grounds.

19.It is clear from the Board’s decision that the applicant’s claim lacked basis and her alleged fear of harmed from her in-law’s family was not substantiated.  It was perfectly open for the Board to reach its findings and conclusions, and it has not been shown that the Board had plainly erred in its findings of the facts, or the application of the law, or that there is any procedural unfairness in dealing with the applicant’s case. 

20.The applicant’s written submissions only contained general principles and bare assertions that the Judge, the Board and the Director did not adhere to high standards of fairness.  She failed to identify with sufficient particulars any errors in the JR Decision.  Nothing mentioned in her Summons and written submissions can be construed 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 31 August 2021.

The applicant, unrepresented, acting in person