Case Document

100%Judiciary

HCAL 3898/2019

[2025] HKCFI 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3898 OF 2019

BETWEEN
	Majhi Dolly	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 31 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 24 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003898_2019_files/the_Board's_Decision.pdf

2.The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 23 April 2018 accordingly.

The applicant’s case

3.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a female citizen of Bangladesh born in Koligram village, Jalirpar, Muksudpur, Gopalganj district in Bangladesh on 20 June 1990. She received 11 years of education and had less than a year of previous work experience in Bangladesh.

(2)   The applicant came to Hong Kong to work as a foreign domestic worker on 23 April 2016. Her employment contract was prematurely terminated on 4 September 2016. She then overstayed and surrendered to the Immigration Department on 26 April 2017.

(3)   The applicant claimed that if she were to return to Bangladesh, she would be harmed or killed by her uncle because of a land dispute between her father and her uncle, and also by an unnamed loan shark because of a loan taken out by her father. The loan shark had joined forces with her uncle. She alleged that her uncle had thrown acid to her father’s face, kidnapped her and sold her to a brothel. She also alleged that the loan shark’s henchmen had thrown acid on her sister’s shin, stomach and right eye from behind and her sister died as a result of the attack.

(4)   The applicant made her non-refoulement claim to the Director by way of written representations dated 29 March 2017 and 9 May 2017. She was released on recognizance on 9 May 2017. On 28 February 2018, she lodged a Non-refoulement Claim Form with the Immigration Department, which was prepared with the assistance of a lawyer from the Duty Lawyer Service.

(5)   An Immigration Officer interviewed the applicant on 23 March 2018, and the Director rejected her application for non-refoulement protection on 23 April 2018. She then appealed to the Board on 7 May 2018.

Grounds for judicial review

4.The applicant advanced the following grounds for her intended judicial review in Form 86 and in her supporting affirmation dated 31 December 2019:-

(1)   The Board was in breach of procedural fairness in the following parts:

(i)   The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(ii)   The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(iii)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(iv)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(2)   The Board failed to give her a fair opportunity to keep forward her submissions in an oral hearing and to invite her to submit written submissions. Even if the Adjudicator had decided not to have an oral hearing, she should at least invite her to submit written submissions and evidence. The applicant was only asked to write grounds for appeal in the Appeal Form, but that will not count as an opportunity to reply to submissions made by the Director’s representatives.

(3)   The Board relied on the source of news which is not officially recognized or it is simply hearsay. It also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for the applicant to return to her country of origin.

Applicant’s absence at the oral hearing

5.The applicant requested for an oral hearing of the Leave Application. An oral hearing was fixed before this court on 25 February 2025 at 2:30 p.m. However, the applicant was absent at the hearing. Instead of attending the scheduled hearing, in the morning of the same day as the scheduled hearing, the applicant filed an affidavit sworn on 25 February 2025. In this affidavit, the applicant made written submission in support of the Leave Application.

6.Apart from repeating some of the grounds mentioned in Form 86, the applicant asserted further grounds in the said written submission as follows:-

(1)   She disagrees with the decisions made by the Director and the Board. She does not think that her case has been determined fairly.

(2)   Without knowing how her case was determined, it is not easy for her to appeal against the decision. She believes there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

(3)   She was never provided with proper legal and language assistance. With her limitation in terms of resources, funding and language capabilities, it has been burdensome for a non-refoulement claimant like her to appeal against the decision. The determination of the appeal/petition has never been read to her in her own language. She believes such failures in providing proper assistance to non-refoulement claimants is procedurally unfair.

(4)   The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposed [sic] of cases is unacceptable and is determinate [sic] to the spirit of the judicial system.

7.As held in Re Ali Mozam [2019] HKCA 1365, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing, and to proceed to determine the Leave Application on its merits.

8.Thus, this court will proceed to consider the merits of all the grounds mentioned by the applicant in her Form 86, supporting affirmation and supplementary affidavit as aforesaid.

Discussion

9.Most of the grounds raised by the applicant are very general, vague and without any specificity. Since the applicant was absent at the hearing, there was no opportunity for this court to clarify with her on the grounds of her intended judicial review. In fact, the applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand her case.

10.From what the applicant has written, it seems that the applicant is alleging that:-

(1) there was no oral hearing before the Board;

(2) the applicant was not invited by the Board to submit written submissions and evidence;

(3) the Board relied on unofficial source of news, hearsay and outdated cases as country of origin information;

(4) the applicant was not provided with proper legal and language assistance;

(5) the applicant did not know how her case was determined and hence it was not easy for her to appeal against the decision;

(6) no one read the determination of the appeal/petition to her in her own language; and

(7) the quick disposal of cases is discriminatory towards non-refoulement claimants.

11.First of all, it is not true that there was no oral hearing before the Board. The Board held an oral hearing on 8 March 2019 to assess the applicant’s appeal/petition and the applicant appeared in person.

12.It is also not true that the applicant had no language assistance. At the hearing, the applicant was assisted by an interpreter in Bengali language, which is the applicant’s language.

13.In fact, the Board questioned the applicant in details about the incidents that she claimed to have led her into fear of harm. The applicant did provide answers to the Board’s questions.

14.Thus, contrary to what the applicant alleged, she was given the chance to present her case and grounds of appeal to the Board in person and in her own language at an oral hearing.

15.The applicant alleges that the Board did not invite her to give written submissions and evidence. However, the applicant had lodged a Non-refoulement Claim Form dated 28 February 2018, which was prepared with assistance of a lawyer from the Duty Lawyer Service and gave details of her case. The applicant also submitted some documents and photos in relation to her sister’s attack and death at the interview with the Immigration Department, and she claimed to have no further documents to submit.

16.If the applicant did have further written submissions or evidence to submit to the Board, she could have done so at the oral hearing before the Board, just like what she did in providing further documents and photos at the interview with the Immigration Department. It is the applicant’s duty to establish her claims before the Board and she should present whatever evidence and submissions, written or oral, so as to satisfy the Board that she is entitled to non-refoulement protection. It is not right to suggest that the Board has to invite her to submit written submissions and evidence before she would do the same.

17.In fact, during the oral hearing before the Board, the applicant raised new matters to the Board, which allegedly were attempts to kidnap her in different cities other than her home village. When the applicant could raise these new matters to the Board, it is simply untrue that she had no opportunity to give further written submissions and evidence to the Board just because of the lack of invitation from the Board.

18.The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant fails to identify which pieces of information and materials she alleges were wrong for the Board to rely on. On the contrary, all the information and materials referred to by the Board were properly identified, and the Board did refer to the then most updated country of origin information from reliable third country sources. Thus, there is simply no substance in the applicant’s allegation in this regard.

19.As to the allegation that there was a lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the preparation of her Non-refoulement Claim Form. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Again, there is no substance in this allegation.

20.Likewise, it is trite that the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegations that she did not know how her case was determined and hence it was not easy for her to appeal against the decision and that no one read the determination of the appeal/petition to her in her own language simply cannot help her. Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed. The applicant cannot claim that she has been prejudiced at all.

21.It is utterly untrue that the Board disposed of her case quickly and was discriminatory towards her. The oral hearing was held on 8 March 2019 and the Board gave the Board’s Decision on 24 December 2019. It means that the Board took more than 9 months to consider the applicant’s case, which can hardly be regarded as quick disposal. The Board in the Board’s Decision gave very detailed discussions and analysis of the applicant’s case, which shows that the Board did consider the applicant’s case very carefully and thoroughly. There is simply nothing to show that the Board was discriminatory towards the applicant.

22.As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board noted significant discrepancies, inconsistencies and omissions in her accounts on the alleged acid attack and subsequent death of her sister, the alleged kidnap and sale of her to a brothel by her uncle, the debt owed by her father to a loan shark and how she came to work in Hong Kong, etc. The mere fact that the Board did not believe the applicant cannot be regarded as a discriminatory act towards her.

23.Thus, the allegation that the Board had a quick disposal of the applicant’s case and was discriminatory towards her cannot be sustained at all.

24.Furthermore, the Board did carefully and thoroughly re-assess the applicant’s claim on all the applicable grounds under the USM, namely:-

(a) risk of torture under Part VIIC of the Immigration Ordinance;

(b) risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

25.After due consideration of the law and the evidence as presented by the applicant, the Board found that there was no real risk of torture, ill-treatment, arbitrary deprivation of life or persecution. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection based on any of the applicable grounds under the USM.

26.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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).

27.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

28.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

29.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. The intended judicial review has no realistic prospects of success at all.

30.Thus, there is absolutely no merits in making the intended judicial review and the Leave Application must be dismissed.

Conclusion

31.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of April 2025

( Alfred Chan )
for Registrar, High Court

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 2/4/2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 2/4/2025 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 11499/18/5/84/B1239 Director of Immigration Putative interested party’s ref. no.: QA T/C 439/18 (formerly RBCZ 11450/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)