Akter Laboni v. Torture Claims Appeal Board

CAMP 536/2022, [2023] HKCA 508

On An Intended Appeal From [2022] HKCFI 1392 &

[2022] HKCFI 3189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 536 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 365 OF 2019)

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J U D G M E N T

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

1.On 13 December 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 May 2022 refusing to grant leave to apply for judicial review (“the Order”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 28 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2018.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Bangladesh. She last arrived in Hong Kong on 31 March 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 31 March 2018 or within 14 days of its termination, whichever was the earlier. She did not commence her employment at all in Hong Kong. On 28 December 2016, she surrendered herself to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh, she would be harmed or killed by the local supporters of a political party called Awami League (“AL”) as she supported a rival political party called Bangladesh Nationalist Party (“BNP”). Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1392).

5.By a Notice of Decision dated 25 January 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 28 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence coupled with her very superficial knowledge of BNP that it doubted the credibility of her claim of fear of harm from the AL people, which was further undermined by her failure to raise such claim upon her first arrival in Hong Kong until some 6 months later, and that given her own concession of being just an ordinary BNP supporter without any official post in the party that the Board failed to see any reason why the AL people would have any adverse interest in her at all, and concluded that the Applicant had failed to provide a truthful account of the events that led to her departure from Bangladesh, and that she will not face any real risk of harm from the AL people or anyone else upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.”

7.On 11 February 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In her supporting affirmation, she merely exhibited the Board’s Decision and the hearing bundle for her appeal before the Board.

THE JUDGE’S DECISION

8.On 17 May 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[10] On 11 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

…

[12] In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 75 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[13] Furthermore, the fact is that it has also been established by the Director in his decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[14] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.On 26 October 2022, the Judge refused the Applicant’s application by summons dated 25 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 3189).

THIS APPLICATION

10.By a summons taken out on 13 December 2022, the Applicant applied to the Court of Appeal for leave to appeal out of time against the Order.

11.In her supporting affirmation of the same date, the Applicant stated, amongst other things, that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.

12.In her written submissions dated 20 December 2022, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to her case.

DISCUSSION

13.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.The Applicant’s complaint that the decision of the High Court was reached unfairly because she never got any opportunity to clarify her case and situation in her home country has no merit. She did not request for an oral hearing in the Form 86. In view of the fact that no proper ground of judicial review was advanced in either the Form 86 or her supporting affirmation, the Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, r 3(3) of the Rules of the High Court.

18.The Applicant has failed to raise any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 13 December 2022 is dismissed.

The Applicant, acting in person