Khatun Asma and Another v. S.J. Geiser, Esq., Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 494/2018

[2019] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 494 OF 2018

(ON APPEAL FROM HCAL NO 34 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 21 September 2018, refusing to grant the 1^st and 2^nd applicants leave to apply for judicial review.

2.Pursuant to the Order made by Master Au-Yeung on 7 November 2018, the 1^st and 2^nd applicants were directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019).  The 1^st and 2^nd applicants, having failed to comply with the said direction, are deemed to have waived their rights to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUND

3.The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2101.  We shall not repeat the same here.

4.Briefly stated, the 1^st and 2^nd applicants are Nationals of Bangladesh.  The 1^st applicant first came to Hong Kong on 2 July 2014 to work as a foreign domestic helper and was permitted to remain until 2 July 2016 or two weeks of early termination of her contract, whichever is earlier.  Her contract was prematurely terminated on 2 March 2015.  She did not depart and overstayed until 27 October 2015 when she was arrested by the police.  She was subsequently referred to the Immigration Department for investigation and on 12 November 2015, she lodged her non-refoulement claim but it was withdrawn on 18 August 2016.

5.The 1^st applicant gave birth to the 2^nd applicant in Hong Kong on 14 May 2016. On 15 July 2016, the 2^nd applicant’s father lodged a non-refoulement claim for and on behalf of the 2^nd applicant but it was withdrawn on 18 August 2016.

6.On 24 August 2016, the 1^st applicant requested to re-open her and her daughter’s non-refoulement claims and her request was allowed on 13 October 2016.  The 1^st and 2^nd applicants’ claims were based on the 1^st applicant’s fear of being harmed, or even killed, by Bablu, the leader of the Awami League (“AL”) at her home village because she failed to reply a loan borrowed from Bablu.

7.By a Notice of Decision dated 21 April 2017, the Director of Immigration (“the Director”) decided against the 1^st and 2^nd applicants’ claims on the BOR 2 risk, BOR 3 risk, torture risk, and persecution risk grounds.

8.The 1^st and 2^nd applicants then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 20 November 2017, the Board dismissed the appeal on 5 December 2017.   As found at [43] to [46] of the Board’s decision, the Board did not accept the 1^st applicant’s case that she came to Hong Kong to avoid being harmed or killed but it accepted that she came for work as a domestic helper in order to pay off her debt.  The Board further found that the 1^st applicant’s case regarding the death threats from Bablu was no more than bare assertion without any admissible evidence in support and her evidence was in any event incredible and unreliable.  By referring to the relevant objective country of origin information (“COI”), the Board found at [51] to [54] of its decision that internal relocation was a viable option for the 1^st and 2^nd applicants if refouled.  The 1^st and 2^nd applicants had failed to establish their claims under all applicable grounds and the appeal was rejected.

THE JUDGE’S DECISION

9.The intended application for judicial review was in respect of the decision of the Board.  The Form 86 filed on 8 January 2018 did not contain any grounds and the supporting affirmation of the 1^st applicant filed on the same day put forward the following grounds for 1^st and 2^nd applicants’ intended challenges :

(1)   failing to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claims;

(2)   failing to take into account or to put proper weight on relevant COI, cherry-picking COI and putting weight on irrelevant COI in the consideration of their claims;

(3)   failing to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights existed in Bangladesh;

(4)   failing to analyse and assess whether state protection existed in Bangladesh and failing to apply the concept of extended state protection correctly;

(5)   taking into account and putting weight on irrelevant consideration or considering incorrect or inaccurate facts;

(6)   failing to call for psychological and psychiatric evaluations and reports on the applicants;

(7)   applying the incorrect standard of proof in making the decision; and

(8)   lack of legal representation.

10.On 21 September 2018, the Judge gave his decision refusing to grant leave to the 1^st and 2^nd applicants to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [16] for his refusal to grant leave :

“ 11. These are however all very broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicants.

12.nbsp; The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

13.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been already made available to them when they still had legal representation, whilst their NCF were completed with legal assistance, and that at their oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  Accordingly, I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

14.  The fact is that it has been established by both the Director and the Board that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having proceeded to consider 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 applicants’ claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

THE APPEAL

11.The 1^st and 2^nd applicants filed the Notice of Appeal on 2 October 2018 in which they set out the following ground of appeal :

“ The grounds of this appeal are that the Plaintiff (the applicants) will face hardship if he is (they are) to return back to his (their) home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

DISCUSSION

12.In this appeal, this Court will only examine the decision of the Judge in light of the grounds advanced by the 1^st and 2^nd applicants.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.   It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  We see no merit in the ground of appeal as it did not identify any error in the Judge’s decision.  The appeal plainly has no prospect of success.

13.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The 1^st and 2^nd applicants, unrepresented, acting in person