Re Nila Mst Khaleda Kaisari

CACV 26/2023

[2023] HKCA 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 26 OF 2023

(ON APPEAL FROM HCAL 965 OF 2019)

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JUDGMENT

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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 against the order made by Deputy High Court Judge K W Lung (“Judge”) on 26 January 2023 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 April 2019 (“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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 19 December 2018 (“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 36, is a fear of harm from an Awami League (“AL”) leader named Bacchu (“Bacchu”) due to the non-repayment of a loan of 200,000 Takas (around HK$20,000) (“Loan”).

3.The circumstances giving rise to such alleged fear have been set out in detail in paragraph 6 of the Director’s Decision and paragraphs 37 to 48 of the Board’s Decision and in gist in [4] of the Judge’s Decision embodied in the Form CALL-1 dated 26 January 2023, [2023] HKCFI 163 (“Form CALL-1”).

4.Briefly:

(1)  The applicant and her husband borrowed the Loan to pay for her training for employment as a foreign domestic helper. 

(2)  The applicant had, since she began employment in Hong Kong, remitted HK$3,000 to her husband every month.  However, instead of repaying the Loan, the applicant’s husband just squandered the money.

(3)  On the other hand, Bacchu had forged a loan agreement under which the amount borrowed by the applicant and her husband was inflated to 2 million Takas.

(4)  In December 2016, the applicant received news from her mother that people of the AL had killed her husband over the dispute about the Loan.

(5)  The applicant later learnt from a neighbour that her mother and children had been attacked by AL people who were armed with pistols and sticks.  Shots were fired to scare them.  The assailants threatened to kill her mother and children if the applicant did not repay the Loan.

(6)  To avoid harm from Bacchu and his people, the applicant’s mother and children had fled to India.  The applicant has since lost contact with her family.

Overstaying in Hong Kong and lodgment of NRF Claim

5.The applicant arrived in Hong Kong on 15 December 2014 to work as a foreign domestic helper until 15 December 2016.  Having failed to secure a renewal with her existing employer or a new contract with another employer, the applicant should have, but had not, left Hong Kong.  Her visa expired on 17 January 2017.  She was arrested by the police on 23 August 2018 for overstaying.

6.The applicant raised the NRF Claim by 11 written significations from 29 August to 24 October 2018.  She later completed and lodged a non-refoulement claim form (“NCF”) on 29 November 2018.

Director’s Decision

7.In addition to the NCF, in processing the NRF Claim, the Director’s representative(s) conducted a screening interview with the applicant on 14 December 2018.  The applicant then had legal advice and representation from the Duty Lawyer Service.

8.The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeal to Board and Board’s Decision

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

10.The Board conducted a rehearing of the NRF Claim on 12 March 2019, at which the applicant testified before, and answered questions by, the Board through a Bengali/English interpreter.

11.The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons. 

12.The Board rejected the applicant’s evidence on core aspects of the NRF Claim.  It found material, but unexplained, inconsistencies between the applicant’s written statements in the NCF and her oral testimony before the Board.  In particular, in departure from the account given in the NCF, the applicant claimed for the first time in her evidence before the Board that a blank document was presented by Bacchu for the applicant and her husband to sign in respect of the Loan.  The Board was also not satisfied with the applicant’s evidence on the alleged attack on her mother and how the applicant came to know about the same.  

13.Having rejected the applicant’s evidence on the central elements of the NRF Claim, the Board found no real risk of harm in the event of refoulement.  

Application for leave for judicial review and Judge’s Decision

14.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 964/2019 on 4 April 2019, the applicant sought leave to apply for judicial review of the Board’s Decision.

15.In the Form 86 and the supporting affirmation filed on the same day, the applicant raised a number of grounds for judicial review, which the Judge summarised at [11] of the Form CALL-1 as follows:

“11. In her affirmation and her statement attached to Form 86 in support of her application, the applicant stated:

(1) the Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2) the adjudicator acted in a procedurally unfair manner: the hearing bundle was given to her near the hearing, giving her not sufficient time to prepare her case and she was confused at the Board’s hearing; that the documents are in English and she did not have interpretation service; that she was not invited to make written submissions

(3) the Board’s Decision is unreasonable or irrational in public law sense; the Board relied on the source of news not officially recognized or is simply hearsay and cases which are outdated, making it speculate that if is safe for her to return to her country;

(4)   the Board failed to meet the greater care and duty owed to a self-represented clamant.”

16.Following a hearing on 23 November 2022 at which the applicant appeared in person before the Judge, on 26 January 2023 the Judge refused to grant leave to apply for judicial review for the reasons set out at [12] – [17] of the Form CALL-1:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14. 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.’

15. As to the grounds under paragraph 11 above, grounds (1), (3) and (4) are her bare assertions or opinions without any evidence in support. The applicant did not apply to the Board for an adjournment for her to prepare her appeal. In fact, she said that she had answered all the questions put to her by the Board, which means she understood the proceedings. Ground (2) fails too as the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

16. 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.

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

Appeal to Court of Appeal - grounds of appeal and submission

17.By the notice of appeal filed herein on 2 February 2023, the applicant appealed against the refusal of leave for judicial review on the grounds (1) that she would face hardship if she returned to Bangladesh and (2) that the Board had made groundless speculations by relying on non-officially recognised or hearsay news and outdated cases.

18.By the written submission lodged on 20 March 2023, the applicant merely reiterated the factual background and procedural history of the NRF Claim, without raising any grounds of appeal, properly so called.

19.The applicant appeared in person at the hearing of the appeal on 22 November 2021.  She kept repeating her fear of harm if she is refouled and urged the court to give her more time in Hong Kong.  She had nothing new to add in further support of her appeal.

Discussion

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

20.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.  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

21.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 at [14(2) & (4)].

Appeal has no merit

22.Neither ground raised in the notice of appeal has any merit.

23.First, the question whether the applicant would be at risk of life or torture if she is refouled to Bangladesh is a question of fact within the province of the Board (after the Director).  The applicant’s much-repeated bare assertion that she would be in danger if she should return to Bangladesh is inconsistent with the findings made at both stages of the unified screening mechanism. The applicant had not in the Form 86 or the supporting affirmation before the Judge identified, with any or any sufficient particulars, any error of law, procedural unfairness or irrationality on the part of the Board in finding against her.  That being the case, the proposed judicial review was hopeless and leave was rightly refused.

24.Second, the applicant did not particularise the groundless speculations that she said the Board had made or pinpoint the news or cases that wrongly led the Board to such speculations.

25.In short, the applicant did not in the notice of appeal or the submission before us (whether written or oral) identify 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 was plainly wrong.  We cannot discern any either.

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

Disposition

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

[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.