Re Khatun Rozina

CACV 76/2019

[2019] HKCA 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2019

(On appeal from HCAL 832 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Ms KHATUN Rozina, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 8 February 2019 refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 2 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 27 January 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 37, is a fear of being harmed or even killed by members of the Awami League (“AL”).  Such alleged fear is said to arise out of the following circumstances:

(1)   The applicant was born in Srighat Village, Bagerhat District, Bangladesh.  Her late father (“Father”) owned and operated a grocery store near the village.  He was an ordinary member of the Jamaate Islami Party (“JIP”), active in their local area.

(2)   The applicant herself became involved as an ordinary JIP member and assisted Father at meetings and rallies in around the end of 2009.

(3)   In the meantime, the AL had come into power in 2008.

(4)   Beginning from 2009, Father had been repeatedly approached by AL members to leave the JIP for the AL but he always refused.

(5)   In around 2010, some AL members vandalised Father’s store.  The Bagerhat police was unresponsive when the applicant and Father made a complaint.

(6)   AL members continued to visit Father at their home about 15 to 20 times a month to convince Father to join the AL.

(7)   On one occasion in around the end of 2010, 10 to 15 AL members attacked the applicant and Father with knives and sticks.  The applicant managed to get away without any injury or with just minor injuries.  However, Father sustained serious injuries, for which he was hospitalised for a month.

(8)   Then, one day in 2011, 10 to 12 AL members vandalised the applicant’s home.  Father was fatally stabbed in the chest.  Some of them attacked and brutally raped the applicant. Afterwards, AL members illegally occupied their house, after kicking out the applicant and her mother.

(9)   The applicant moved to Khulna for several months, after having been told that AL members were looking for her.

(10)   Later, she went to Kolkata, India, where she stayed for about 3 months in around July 2012 until her visa expired.

(11)   The applicant then returned to Bangladesh and found employment in Mirpur as a domestic helper.  She was, however, forced by her employer into an illicit sexual relationship with him behind the back of his wife.  She also later discovered that he was also a member of the AL.  The applicant eventually left this job after several months.

(12)   The applicant believed that AL members were still looking for her.

Entry into Hong Kong and lodgment of NRF Claim

3.The applicant arrived in Hong Kong on 29 July 2013 to work as a domestic helper and was, as such, permitted to remain for 2 years or until 14 days after the termination of contract, whichever was the earlier.  Her employment contract was terminated prematurely on 30 November 2013 and she overstayed in Hong Kong since 15 December 2013.   She was arrested on 7 March 2016 for overstaying and for working illegally, for which offences she was sentenced on 10 March 2016 to 2 months’ imprisonment.  She lodged the NRF Claim and submitted a Non-refoulement Claim Form (“NCF”) on 17 April 2016 and 9 July 2016 respectively.  She was arrested again on 24 November 2016 for working illegally and for breaching her condition of stay while being released on her own recognizance, for which offences she was given 3 months’ imprisonment.

Director’s Decision

4.In processing the NRF Claim, the Director’s representatives conducted 2 screening interviews on 1 August 2016 and 9 January 2017 (“screening interviews”) with the applicant.

5.The Director rejected the NRF Claim on all applicable grounds namely, torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeal to Board and Board’s Decision

6.The applicant appealed against the Director’s Decision to the Board.

7.The Board conducted a rehearing of the NRF Claim on 14 March 2018, at which the applicant clarified certain matters and answered questions by the Board with the assistance of a Bangladeshi interpreter.

8.The Board dismissed the applicant’s appeal on all applicable grounds.  More particularly:

(1)   The Board found the applicant an unreliable witness and her evidence lacking in detail, vague and inconsistent with or contradictory to the information given in the NCF or at the screening interviews.  In short, the Board did not believe her evidence.

(2)   In any event, the applicant last had contact with the relevant AL members in 2011.  There is no evidence that they had taken steps to locate her thereafter.  Nor was there any credible reason why they should spend time and resources trying to do so.

(3)   The Board also considered the country of origin information (COI) in relation to the issues of state acquiescence and extended state acquiescence.  The COI does refer to recent and ongoing efforts in Bangladesh to improve the performance of the police and other government organs.

(4)   Even if the applicant had been able to show that she faced a real or genuine risk of harm as claimed, the Board would have found that such risk was confined to the local area where she had lived.  The applicant, an able-bodied adult having overseas working experience as a domestic helper, has many viable and reasonable options for relocation to other districts of Bangladesh, e.g. Chittagong.  It would be very difficult for the AL members to locate the applicant in such a large and populous country as Bangladesh.

Application for leave for judicial review and Judge’s Decision

9.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 832/2018 on 14 May 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision on the ground that the Board was in breach of procedural fairness by:

(1)   unlawfully fettering its discretion by refusing the applicant’s appeal “on the grounds that they did not satisfy the requirement”;

(2)   acting in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)   reaching decisions which were unreasonable or irrational in the public laws sense or were a result of procedural errors or unfairness; and

(4)   failing to meet the greater care and duty owed to a self represented claimant.

10.These grounds were all general and vague without any particulars or specifics.  As set out by the Judge at [16] of the CALL-1 form dated 8 February 2019, [2019] HKCFI 311 (“CALL-1 Form”), by the applicant’s affirmation of the same date, she made the following somewhat more specific complaints:

(1)   that she was given the hearing bundle only 6 days before the appeal hearing before the Board;

(2)   that she was not given sufficient time to prepare her case;

(3)   that the contents of the bundle were in English and she was not given assistance to understand the same; and

(4)   that the Board had relied upon COI, which was not officially recognised or was outdated or hearsay.

11.The Judge’s reasons for refusing leave after an oral hearing can be found in [17]-[22] of the CALL-1 Form, as follows:

“17.   She did not raised (sic) grounds (1), (2) and (3) with the Board.

18.   The applicant could seek assistance from available sources such as the Director’s office, the Legal Aid Department, the City District Office or the Board.  She did not attempt to do so.

19.   At paragraph 13 of the Board’s Decision, the Adjudicator had said that he had explained the procedures of the hearing to the applicant through the interpreter.  She confirmed what she said to the Director in support of her claim for non-refoulement were true and correct and she had nothing to add to her evidence.  She also said that she had answered all the questions put to her by the Adjudicator honestly.

20.   All these show that she was not confused at the hearing.  She was not prejudiced by the hearing bundle either.

21.   Grounds (1) to (3) fail.

22.   As to ground (4), that the Board had relied on the source of news which was not officially recognized, outdated or it is hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer.  The Adjudicator had considered the relevant reports under the COIs.  They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings.  The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.  The applicant has not set out why she considers that the information is unreliable.”

Appeal to Court of Appeal and grounds of appeal

12.By a notice of appeal filed on 15 February 2019, the applicant appealed against the refusal of leave for judicial review on these grounds:

(1)   She would face hardship if she were to return to her home country (“Ground 1”).

(2)   The Board had significantly relied on sources of news that is not officially recognised or is simply hearsay.  It had also relied on some cases which are outdated “considering the dramatic changes”. The lack of credible source of information had resulted in the Board making groundless speculations (“Ground 2”).

13.In her skeleton submission dated 28 March 2019, the applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43]-[45] and [51] for the well settled propositions that high standards of fairness are required on the part of the decision-makers in processing torture claims; that the court will on judicial review subject the determinations made on torture claims to rigorous examination and anxious scrutiny; and that the potential deportee should be given every opportunity to establish his claim.

14.The applicant appeared in person at the hearing of the appeal on 14 May 2019.  She had nothing to add to her grounds of appeal or skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

15.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

16.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

17.We are unable to act on Ground 1.  As summarised in paragraph 8 above, the Board dismissed the applicant’s appeal against the Director’s Decision essentially on the facts, partly because it disbelieved the applicant’s account of events allegedly giving rise to her fear of harm from AL members.  Ground 1, which asserts hardship to the applicant if refouled, contradicts the Board’s finding that the applicant had failed to show that she faced a real or genuine risk of harm.  However, the applicant has not identified any basis upon which such factual finding by the Board or the process by which the Board reached the same can be faulted.  Anyway, as stated in paragraph 16 above, at this stage of proceedings, the Court of Appeal does not engage in a fresh examination of the Board’s Decision.

18.Ground 2 likewise focuses wrongly on the Board’s Decision, rather than that of the Judge, with which we should be concerned.  In any event, it has not identified the supposedly unrecognised or hearsay source of news or out-dated cases, not to mention the ways in which they allegedly caused the Board to speculate with grounds.

19.As for the principles of law cited in the skeleton submission, the applicant has not said whether and, if so, how the Judge had acted against any such principles in refusing leave for judicial review.

20.Notwithstanding the applicant’s failure to state any grounds of appeal directed at the decision by the Judge, we have keenly considered such decision and the reasoning by which it was reached.  We cannot discern any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave for judicial review could be said to be plainly wrong.

Disposition

21.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, appeared in person