Re Moni Rohima Khatun

CACV 101/2019

[2019] HKCA 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 101 OF 2019

(ON APPEAL FROM HCAL NO. 666 OF 2018)

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Before: Hon Cheung, Yuen and Barma JJA in Court

Date of Judgment: 2 July 2019

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J U D G M E N T

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

1)  The appeal

1.1This is an appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 21 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1The applicant is a national of Bangladesh.  In March 2015, she came to Hong Kong as a domestic helper.  After her employment was terminated prematurely she overstayed.  On 6 July 2015, the applicant surrendered to the Immigration Department.  On 17 March 2016, the applicant raised a non‑refoulement claim.

2.2The basis of the applicant’s claim is that she would be harmed or killed by her ex-husband Shamsun, Abul (Shamsun’s brother), the Hindu community and the Muslim community in her village.

2.3The background facts have been summarized in the decision of the Judge at [3]-[20].

3)  The Director’s Decision

3.The Director decided against the applicant’s torture claim on 28 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 15 November 2017, the Board dismissed the applicant’s appeal on 29 March 2018 (‘the Board’s Decision’).

4.2The Board found that there were a number of unsatisfactory features that required explanation, which was not forthcoming since the applicant chose not to answer questions.  The Board did not accept Abul threatened to kill the applicant.  There was no state acquiescence of any kind found.  The applicant simply did not inform the local police.  There was no finding of any torture risk, persecution risk, BOR 2 or BOR 3 risks.

5)  Decision of the Judge

5.The Judge held that the assessment of evidence and country of origin materials are within the province of the Board (and the Director).  The Judge could not find fault in the Board’s Decision.  Even though the Board did not need to decide the case on country of origin information, the Board did refer to country of origin information anyway.  There was no evidence of cherry picking information.  

6)  Grounds of appeal

6.The applicant in the notice of appeal referred to her grounds of appeal contained in her supporting affirmation which gave bare assertions that the Judge was wrong in holding there was no state acquiescence, and that he failed to give detailed reasons in his Decision.

7)  Our view

7.1We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].  None of these errors exists in this case.

7.2Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person