Re Marma Paiching

CACV 356/2021

[2021] HKCA 1766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2021

(ON APPEAL FROM HCAL 505 OF 2019)

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Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Hearing:  16 November 2021

Date of Judgment:  30 November 2021

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J U D G M E N T

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Hon Lisa Wong J (giving judgment of the court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”)  on 9 July 2021 (“Judge’s Decision”)  refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 26 July 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”)  on 9 June 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, is a fear of being harmed or even killed by her husband (“Mong Chai”)  and his mistress (“Chakma”).

3.The circumstances allegedly giving rise to such fear were set out in detail in paragraph 6 of the Director’s Decision and paragraphs 24 to 40 of the Board’s Decision and in gist in [5] to [6] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 1820 (“Form CALL-1”).  Briefly:

(1)  The applicant was a Buddhist from the Chittagong Hill Tracts (“CHT”).

(2)  She reluctantly entered into the arranged marriage with Mong Chai.

(3)  Mong Chai had been having an affair with Chakma.

(4)  He also abused the applicant regularly, sometimes beating her into unconsciousness.  The applicant felt that Mong Chai wanted to kill her.

(5)  Though not formally divorced, they separated and ceased contact since 2009.

(6)  She moved to Cox’s Bazaar in late 2010 and then to Dhaka in 2012, for reasons not concerning Mong Chai.

(7)  The applicant then came to Hong Kong to work as a domestic helper after undergoing training for 3 months in Keraniganj.

(8)  Her stays in Cox’s Bazaar, Dhaka and Keraniganj were all uneventful.  Mong Chai had no idea of her move to, and employment in, Hong Kong.

Overstaying in Hong Kong and lodgment of NRF Claim

4.The applicant arrived in Hong Kong on 28 January 2014.  Her employment as a foreign domestic helper was terminated prematurely on 13 October 2014.  She did not leave and overstayed from 28 October 2014.  She was arrested for overstaying on 21 September 2016.  She raised the NRF Claim by written signification dated 28 November 2016 and submitted a Non-Refoulement Claim Form dated 24 April 2017 (“NCF”), which she completed with the help of the Duty Lawyer Service (“DLS”).

Director’s Decision

5.After considering the information provided by the applicant in the NCF and at the screening interview on 31 May 2017, the Director found the NRF Claim unsubstantiated for torture risk[1], persecution risk[2], “BOR 2” risk[3] or “BOR 3” risk[4].

Appeal to Board and Board’s Decision

6.The applicant appealed to the Board.

7.She made entirely new claims that her family “has suffered and [been] murdered after discrimination by some Muslim organisations” and that Mong Chai was looking for her to get back a piece of land that her father-in-law gifted her by adding her name to the title deed.

8.The Board conducted a rehearing on 30 May 2018 and 26 July 2018, at which the applicant gave evidence and answered the Board’s questions through an interpreter.

9.The Board dismissed the appeal on all 4 grounds for non-refoulement protection. In summary, the Board found the versions of events told by the applicant to the Director and the Board to be very different. For instance, it was incredible that she did not include the alleged murder of her brother by Mong Chai in her original claim before the Director but only raised it in the appeal before the Board.  There was no evidence that her father-in-law had gifted land to the applicant, which she used to explain why Mong Chai would now look for her.  Given that they had not met since 2009, the risk of harm from Mong Chai would be low.

Application for leave for judicial review and Judge’s Decision

10.By the Form 86 issued under HCAL 505/2019, and the supporting affirmation filed, on 21 February 2019, the applicant applied for judicial review of the Board’s Decision due to (1) her lack of legal representation and language assistance after the DLS explained the Director’s Decision to her and (2) the Board’s alleged bias in finding her unreliable by picking on just one or two matters out of many events that spanned over a long time and by failing to have regard to her vulnerability as an abused woman which affected her recall of events that happened long ago.

11.At the oral hearing on 24 May 2021, the applicant handed up to the Judge a number of documents that were not before the Board (“New Documents”). 

12.The Judge explained the refusal of leave in [13] to [19] of the Form CALL-1:

“13. The applicant appeared before me. She confirmed that she had no complaint against the hearings or the adjudicator. She was free to express herself at the hearings. She produced some documents, which she said would support her case for the Court’s consideration. She said that she obtained the materials online. She was unable to explain why she was unable to produce them to the Board. I decided to accept them on the basis that I will look at them without making investigation into them myself as I have no power to do so. Those documents will be left on the file.

14. The documents submitted are on the perspective and persistence of militarization in Chittagong Hill Tracts. It sets out the history and development of Chittagong Hill Tracts being turned into a Muslim-dominated region by the military. This issue may relate to the issue of internal relocation in her case. The Board had considered this issue and found in paragraph 77 of its Decision that the applicant may find it difficult, if not dangerous for her to relocate in Bangladesh outside the CHT. It accepted that relocation outside the CHT would not be an option for her. However, the Board did not consider internal relocation in her case because it found that she is not eligible for non-refoulement protection under the relevant statutory provisions and the Convention.

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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.’

17. The grounds raised by the application in support of her application do not assist her. High standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant. Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 [13]. The applicant is not entitled to free legal representation at every stage of the proceedings as she had already had {DLS’s] service at the screening stage. Re:Miah Mohammad Sahin [2020] HKCA 982 [24]. That she considered that the adjudicator was biased is only her opinion. The adjudicator did not say in the Board’s Decision that she was a liar or she had fabricated her case although he said that her evidence was inconsistent in various aspects. These grounds fail.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to Court of Appeal - grounds of appeal and submission

13.The applicant filed the notice of appeal and lodged written submission herein on 21 July and 18 October 2021 respectively.  She pursued this appeal on the following 4 grounds:

(1)  “Ground 1” - It was procedurally unfair that the court and the authorities did not exercise caution and diligence in handling her case as a self-represented litigant.

(2)  “Ground 2” - Notwithstanding her inability to read or write English, after the Director’s Decision, she had not been provided with any language or legal assistance, without which she could not (1) fully understand the decisions that had been made against her, (2) formulate proper grounds for judicial review or grounds of appeal or (3) effectively appear at hearings, much to her disadvantage.  The Judge was unfair in failing to acknowledge or give weight to her language incapability or consider the significance and extent of unfairness to her arising from her lack of legal or language assistance.

(3)  “Ground 3” - The Board wrongly dismissed the case based on credibility.  It is unfair to leave the assessment of the applicant’s credibility entirely to the Board (as the Director made no such assessment), which means that a case becomes unappealable once the Board considers a claimant incredible.

(4)  “Ground 4” – The Judge should have had regard to, but did not consider, the New Documents.

14.The applicant appeared in person at the hearing of the appeal on 16 November 2021.  She made statements consistent what was reported in the New Documents (see [20] below).

Ground 1

15.Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how she or her case has not been treated with caution or diligence.

Ground 2

16.It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

17.As noted by the Judge, the applicant did have the benefit of representation from the DLS in presenting her case to the Director.  Other than a general complaint, she has not pointed out in what ways she was prejudiced before the Board or the Judge due to her being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

18.As for interpretation services, they are provided at the hearings before the Director, the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of the screening process or legal proceedings where the lack of interpretation service before/after these hearings hampered the presentation of her case.

Ground 3

19.What took place before the Board was a re-hearing.  The Board was entitled, and indeed obligated, to make its own independent findings.  As far as we can see, the adverse conclusion regarding the applicant’s credibility was founded on a sound analysis of the evidence given by her at different stages of the screening process.

Ground 4

20.We have ourselves read and considered the New Documents, which have been kept on the lower court file.  They appeared to reports and photographs obtainable online on the religious conflicts in the CHT and its militarisation and development into a Muslim-dominated region.  There are accounts of heinous crimes by the army, security forces and others and of the persecution, suppression and violation of Buddhists, women and children etc in the CHT.

21.Nonetheless, like the Judge, we see the New Documents as being material only to the questions whether there are viable options for the applicant’s relocation in Bangladesh and, if so, what are they.  Such questions, however, did not arise due to the Board’s finding that the applicant’s account was incredible.

No arguable ground for judicial review or ground of appeal

22.To conclude, the applicant had not in either the Form 86 or her supporting affirmation put forward any arguable ground for judicial review based on errors of law, procedural unfairness or irrationality in the Board’s Decision.  The proposed judicial review was hopeless and leave was rightly refused.  Nor had she identified in the notice of appeal or submission (whether written or oral)  before us any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

23.In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

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

The applicant was unrepresented and appeared in person