Das Catherine Anthony v. Torture Claims Appeal Board

CAMP 418/2022, [2023] HKCA 504

On appeal from [2022] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 418 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2467 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.On 25 March 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.On 27 September 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in her intended appeal[2].

3.On 10 October 2022, the applicant filed the present summons with the Court of Appeal to renew her application for leave to appeal out of time against the decision of the judge dated 25 March 2022.

4.The applicant is a national of India. She is 60 years old. She entered Hong Kong as a domestic helper in 1984. Her last employment was prematurely terminated in 2003 but the applicant did not return to India. She overstayed in Hong Kong since 19 December 2003. More than a decade later on 9 October 2014, she surrendered to the Immigration Department and sought non-refoulement protection on the basis that she would be harmed or killed by her husband if she is returned to India.

5.By a Notice of Decision dated 21 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 3 July 2018. Upon considering the totality of the evidence, the Board did not find the applicant would face a real risk of harm from her husband if she is refouled to India. Firstly, the passage of time since the applicant’s husband made the alleged threats against her was more than 17 years ago and there is no supporting evidence from the applicant as to the current situation, save for hearsay evidence from her mother-in-law. Furthermore, there is no involvement of the state and the applicant has confirmed that she believed the police could protect her in other matters. Lastly, internal relocation was not unreasonable for the applicant, and this further undermined her claim for non-refoulement protection. The Board therefore rejected the applicant’s appeal on 7 August 2018 and confirmed the Director’s decision.

The judge’s decision

7.On 5 November 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. The applicant put forward various grounds for her intended challenge, as summarised by the judge at §9 of his decision:

“(1) That the Adjudicator failed to apply high standards of procedural fairness in holding an oral hearing for the Applicant’s appeal in particularly when the Adjudicator sought to challenge the Applicant’s credibility that an oral hearing was warranted in order to satisfy the tribunal’s obligation of procedural fairness;

(2) That the Adjudicator took account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(3) That the Adjudicator had failed to take account of all the COI material in the hearing bundle in rejecting the basis of the Applicant’s claim and in his findings of no genuine threat against her, that she could live in other places in India, and that internal relocation was a viable option; and

(4) That the Adjudicator had significantly relied on the source of news that was not officially recognized or was hearsay or outdated, and with the lack of credible source of information that had resulted in him making groundless speculations as if it were his own personal assessment.”

8.The judge held that ground (1) was incorrect as there was in fact an oral hearing before the Board. As for grounds (2) to (4), the judge held that they were just broad and vague assertions without any particulars, specifics or elaboration as to how they are applicable to the applicant’s case. In any event, there was no error of law or procedural unfairness in the decision of the Board in their consideration and assessment of the applicant’s claim. In conclusion, the judge found there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 25 March 2022.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in her summons or her supporting affirmation save to state that she did not agree with the decisions of the Court. The applicant also stated that she did not receive documents from the Court in her Summons. As for her written submissions, the applicant repeated the basis of her claim for non-refoulement without providing any further supporting evidence.

Analysis and disposition

10.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 25 March 2022. The applicant took out a summons in the court below on 16 May 2022. She was late for about one month. This is substantial. She explained at the hearing before the judge in September 2022 that she did not know how to appeal and had to seek help from her friends to prepare the necessary documents.

12.This is not an acceptable reason for the delay. As the applicant’s delay is not excusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave to bring judicial review. Similar to the grounds of her intended challenged before the judge below, the written submissions of the applicant before this Court are merely bare assertions without any elaboration. As for the applicant’s contention that she was unable to receive Court documents, as the judge noted in §5 of his Decision of September 2022, the Court document was sent to her last reported address and was not returned through undelivered post. The Court of Appeal has repeatedly stated that the consequence of any delay or failure occasioned by the ineffectiveness for providing a proper address of service would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

16.In the circumstances, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to pursue a hopeless appeal against the judge’s decision of 25 March 2022. The summons filed on 10 October 2022 is dismissed.

The Applicant, acting in person