Re Yeashmin

CACV 147/2019

[2019] HKCA 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 147 OF 2019

(ON APPEAL FROM HCAL 820/2018)

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Before: Hon Lam VP and McWalters JA in Court

Date of Judgment: 16 August 2019

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 18 March 2019 refusing leave to the applicant to apply for judicial review. 

2.Due to the non-compliance with an unless order in terms of lodging of skeleton submissions, the hearing date of this appeal (originally listed for 15 July 2019) was vacated and the appeal is processed on paper based on the materials already lodged.

3.By a letter dated 26 March 2019, the applicant gave consent that this appeal might be dealt with by a two-judge court.

4.This is our judgment.

Background

5.The applicant is a national of Bangladesh.  She entered Hong Kong on 18 March 2014 on the strength of her Bangladeshi passport, and was given permission to remain as a domestic helper.  Her employment contract was terminated prematurely.  She did not leave Hong Kong and had overstayed since 22 February 2015.  She was arrested by the police on 12 March 2016.  She lodged her claim for non-refoulement protection on 16 March 2016. 

6.The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her husband, her husband’s family, and the supporters of Awami League because of her support for the rival political party, the Bangladesh Nationalist Party. She had once left her husband in 2004 and only returned to him in 2008. By then, he had already married another woman. Though they did not divorce each other, the applicant had no further contacts with her husband since 2009. She allegedly came across her husband again in 2013 and was allegedly threatened by him and the second wife. The relevant facts were summarized by the judge at [1] – [14] of the Form CALL-1 (published as [2019] HKCFI 679).

7.By a notice of decision dated 31 October 2016, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds (namely, the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4]) and determined the risks against the applicant. 

8.The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (‘the Board”) against the Director’s decision.  An oral hearing was held on 22 February 2018.  The Board concluded that the applicant’s claim lacked credibility and parts of it were untrue.  The Board also adopted the decision of the Director that internal relocation was a viable option for the application.  By a decision given on 2 May 2018, the Board dismissed the applicant's appeal/petition.

The judge’s decision

9.The applicant filed her Form 86 on 11 May 2018, seeking leave to apply for judicial review against the decisions of the Director and the Board.  Her grounds for seeking reliefs were set out in her supporting affirmation filed on 11 May 2018 as follows:

(a)  The Director and the Board cherry-picked the COI materials, which did not represent the real condition in Bangladesh;

(b)  They failed to consider the applicant’s fear and her physical torture, which she complained to the police and the police failed to render protection to her;

(c)  They failed to give reason for their conclusion on the lack of BOR 3 risk in the applicant’s case;

(d)  They failed to conduct sufficient inquiry into the relevant COI conditions;

(e)  They failed to take into account the psychological strain and threats to which the applicant was subjected; and

(f)  They failed to consider the concept of state acquiescence as expounded in TK v Jenkins HCAL 126/2010, 21 October 2011.

10.Upon the request of the applicant, an oral hearing was held on 16 August 2018. 

11.As mentioned earlier, the judge refused the applicant’s application for leave to apply for judicial review.  The judge rightly pointed out at [20] of the Form CALL-1 that the Director’s decision was not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549 at [45].  The reasons in refusing leave were set out in [32] – [39] as follows:

“ Discussion

32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘ The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’ (CACV 219/2018 [2018] HKCA 570, para 14(1))

34. The Applicant complained the Adjudicator failed to consider her case properly and relied on wrong COI to reject her claim. She said the Adjudicator had no basis to find she faced no risk and failed to give clear reasons for his decision on BOR3 risk.

35. The Adjudicator’s report showed the Adjudicator studied the Applicant's case in detail. He referred to relevant COI. He had proper basis to conclude the Applicant's claim was incredible. He did not accept the Applicant had any risk that warranted non-refoulement protection. The Adjudicator gave clear reasons for his decision, which must be read as a whole to understand why he was not satisfied the Applicant had any torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, he found internal relocation was viable in the Applicant's case.

36. As the Applicant’s claim was found to be incredible, her alleged fear or psychological strain was not a real issue. The Adjudicator also need not consider state protection or state acquiescence because there was no risk.

37. There was no evidence the Adjudicator cherry-picked COI or relied on inaccurate information concerning Bangladesh.

38. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

39. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

The appeal

12.On 26 March 2019, the applicant filed a notice of appeal.  The applicant advanced the following grounds of appeal in the notice.

(1)  The judge had wrongly exercised his decision in coming to the conclusion that the Board had not erred in its decision;

(2)  The Board wrongly held that the applicant was not a credible witness due to the discrepancies found in the interview records, the Non-refoulement Claim Form, and the oral evidence given during the hearing before the Board;

(3)  The bundle lacked clarity and transparency as it was not interpreted to the applicant, rendering her difficult to prepare for the hearing; and

(4)  The applicant had no means to find out whether the interpreter had translated the materials adequately, and she further asserted that her word had always been wrongly interpreted.

13.Notwithstanding that she was directed to do so, the applicant did not lodge any written submissions in support of this appeal.

Discussion

14.In the present case, the Board rejected the applicant’s claim based on its finding against the applicant’s credibility.  As the judge correctly pointed out at [33] of the Form CALL-1, such finding as well as the evaluation of the risk of harm are within the province of the Board.  The court will not interfere with the same unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge did not find any reasonably arguable basis to challenge the findings of the Board.

15.Ground 1 in the grounds of appeal is a self-serving assertion without any substance. It cannot constitute a valid ground of appeal. 

16.As regards the remaining grounds, the applicant did not raise these grounds in the proceedings below.  In an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance (and for which leave has not been sought within time) would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]. 

17.In any event, these new arguments have no merit.  The Board’s adverse finding on the applicant’s credibility was not based on discrepancies amongst the interview records, the NCF, and the oral evidence given at the hearing.  As the Board had clearly explained at [69] – [71] of its decision, parts of the applicant’s version of events defied common sense and were unbelievable. 

18.The applicant provided no particulars as to how the bundle lacked clarity and transparency, or how such lack of clarity and transparency had rendered the process unfair. 

19.The applicant gave no particular to support her allegation that “[her] word have always been wrongly interpreted”.  There is no evidence placed before us that the interpreter who assisted the applicant in the process did not provide adequate interpretation to her. 

20.Having considered the materials available before us, we cannot find any ground to reverse the decision below.  In our view, the judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

21.For these reasons, we dismiss the appeal.

The applicant acting in person