AKTER SUME v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2087/2019

[2025] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2087 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Akter Sume (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 13 February 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Bangladeshi.  She was born on 5 September 1986 in District Dhaka, Bangladesh.  She worked in a garment factory from 2009 to 2013 and at the same time started a garment business in Bangladesh (“Business”) in around 2012 with 4 partners (“Partners”).  The Applicant said that the Partners were affiliated with the Awami League, a political party in Bangladesh.

3.  She came to Hong Kong to work as a foreign domestic helper in October 2013.  Her employment contact was terminated in December 2014 and she was required to leave Hong Kong by 24 December 2014.  She did not leave Hong Kong as required and overstayed in Hong Kong since 25 December 2014.  She surrendered to the Immigration Department on 21 June 2016 and lodged the Claim in October 2016.

4.  The Applicant claimed that she invested 200,000 Taka in and loaned a further sum of 300,000 Taka (“Loan”) to the Business.  In April 2013, the Partners told her that they could return the Loan to her.  When she went to see the Partners, they told her that they would never return the money to her and if she insisted on getting back the money, they would kill her.  The Applicant had arguments with them.  They beat up the Applicant with hockey sticks, raped her and burned her hand.  She escaped and reported to the police but was asked for a bribe of 50,000 Taka which she could not afford to pay.  The police refused to register her case.

5.  The Applicant was injured in the incident and received treatment in a clinic.  She was followed by the Partners on her way home from the clinic. They attacked her with chopper and knives.  She was injured but managed to escape. She received treatment in a hospital.  After that, she went to Dhaka before she came to work in Hong Kong.

6.  The Applicant was told by her parents that the Partners still went to the Applicant’s home and threatened her parents that they would kill the Applicant if they found her again.

7.  The Applicant claimed that the Partners would harm or kill her if she returned to Bangladesh.

8.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (the “Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

10.  On 22 July 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant named the Adjudicator of the Board as proposed respondent and the Director as interested party in the Form 86.  The Applicant also filed her supporting affirmation on the same day (the “Supporting Affirmation”).

Legal principles applicable to judicial review

11.  In a judicial review, the court does not step into the shoes of the decision makers.

12.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

13.  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 reasonably arguable claim which enjoyed realistic prospects of success. 

Discussion

14.  The Applicant failed to attend the court hearing scheduled for 6 February 2025 (“Court Hearing”) despite a notice of hearing dated 13 January 2025 having been sent to her and not being returned.  In fact, the Applicant had also failed to respond to another letter dated 24 September 2024 sent by the court to her previously inviting her to send submissions to the court.  As such, I decided to proceed to deal with this application according to papers already placed before the court.

15.  In the Form 86, the Applicant raised the following grounds for the intended judicial review:

(1)  the Board had unlawfully fettered its discretion by refusing the Appeal on the ground that it did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the Appeal;

(3)  the Board’s decision to refuse the Appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self‑represented claimant.

16.  All the grounds referred to in the Form 86 were bare assertions without particulars and not supported by evidence.  No particulars or supporting evidence were provided in the Supporting Affirmation and the Applicant did not attend the Court Hearing to provide the same.  Without particulars and supporting evidence, these grounds are not reasonably arguable. 

17.  In the Supporting Affirmation, the Applicant raised the following grounds for the intended judicial review:

(1)  she lodged the Claim on 25 October 2016 and the Director did not determine the Claim until 13 February 2018.  There was a substantial delay of about 2 years;

(2)  she was not legally represented at the Appeal hearing before the Board and no legal advice was provided to her for the Appeal;

(3)  the hearing bundle for the Appeal hearing was given to her just one week before the Appeal hearing and the skeleton submissions of the Director were provided to her just a few days before the Appeal hearing.  There was insufficient time for her to prepare for the Appeal hearing;

(4)  she did not have the means to hire an interpreter and could not understand the English documents (which included the skeleton submissions of the Director) sent to her.  Because of the lack of language assistance and insufficient time to prepare, she did not understand what was happening at the Appeal hearing;

(5)  she requested the Board to notify her of the result of the Appeal by phone but the Board sent the Board’s Decision to her by post and she only received the same on 20 July 2019;

(6)  the Applicant answered all questions honestly but was erroneously found to be incredible;

(7)  the Board wrongly relied on sources of news which were outdated, hearsay, or not officially recognized, causing the Board to wrongly conclude that the Applicant could return safely;

(8)  the Appeal was refused on unacceptable and unexplainable grounds;

(9)  the Board refused the Applicant’s claim based on the BOR 2 risk without the same being screened by the Director; and

(10)  the Director and the Board wrongly refused the Claim without proper inquiry or understanding of the Applicant’s situation.  The Applicant stated that: “To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his [sic] case what real danger I would face if I am returned there.” (§15 of the Supporting Affirmation)

18.  The Applicant lodged the Claim in October 2016 but she did not complete her non-refoulement claim form (“Claim Form”) until 5 January 2018.  A screening interview (“Interview”) was arranged for her for 2 February 2018 and the Director issued the DOI Decision on 13 February 2018.

19.  It can be seen from above that the major delay was caused by the time taken up by the Applicant to complete the Claim Form, i.e. more than 1 year. The Interview was arranged for the Applicant within 1 month after she submitted the completed Claim Form and the Director determined the Claim within 11 days after the Interview.  I see no delay in the Director handling the Claim.  Any delay was on the part of the Applicant.  Furthermore, the Applicant had been released on recognizance on 14 July 2016, prior to her lodging of the Claim.  I see no unfairness caused to the Applicant by the time taken up by the Director in processing the Claim.  Relying on this ground for judicial review has no merits.

20.  The Applicant complained that she was not legally represented at the Appeal hearing before the Board.  However, the Applicant had not explained in the Supporting Affirmation why she did not have legal assistance when she appealed to the Board and she did not attend the Court Hearing to explain for the same. 

21.  As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“18. As a standard practice, the Director would have drawn her attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.”

22.  The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17)  In the absence of any assertion by the Applicant that she had applied to the Duty Lawyer Service (“DLS”) for legal assistance but the DLS had not properly applied the merit test in refusing her application, it does not lie in her mouth to complain of lack of legal representation in the Appeal.

23.  The Applicant complained that the hearing bundle and the Director’s skeleton submission for the Appeal were provided to her only one week or a few days before the Appeal hearing with a weekend intervening, leaving her insufficient time to prepare for the Appeal hearing.  The documents were substantially in English which she was not familiar with and she could not afford interpretation service.

24.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  She has to live with or cope with her language disability.  She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community.  I note that the Supporting Affirmation contained an interpretation clause, which showed that the Applicant was able to seek language assistance to interpret English documents for her.

25.  Furthermore, the hearing bundle should be basically made up of the Claim Form, the records of the Interview, the DOI Decision, her notice of appeal and the country of origin information (“COI”) materials.  The Applicant knew what was contained in the Claim Form and notice of appeal which were documents prepared and submitted by her.  She knew what was contained in the records of the Interview which she attended with the assistance of an interpreter.  The Interview records should have been read back to her in her own language before she signed the same.  The DOI Decision was sent to her in February 2018 and she had to understand the DOI Decision before she appealed to the Board.  The COI were materials considered by the Director and referred to in the DOI Decision.

26.  The skeleton submissions of the Director for the Appeal would basically reiterate the Director’s grounds set out in the DOI Decision.

27.  In the premise, the Applicant should know the contents of the Director’s skeleton submissions and the documents included in the hearing bundle.  She should be able to obtain language assistance by herself, if she so required.  I see no merits for the Applicant to argue that the lack of language assistance would jeopardize her rights in this case.   

28.  The documents were provided to the Applicant one week or a few days before the Appeal hearing.  Such period might be short but not unreasonable. The Applicant should not have indulged herself for the weekend and forgotten about her appeal as if she was a tourist visiting Hong Kong.  Furthermore, time should start to run from the date of her notice of appeal.  The Appeal hearing was held on 3 June 2019, i.e. more than 15 months after the issuance of the DOI Decision.  In between, the Applicant had more than 1 year to find out what the appeal bundle was all about.  If she needed more time for preparation for the Appeal, she could have raised the same with the Board at the Appeal hearing which the Applicant did not.

29.  Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and she did not provide any particulars or documentary evidence to corroborate this complaint, nor did she raise any such issue during the Appeal hearing when she was able to give evidence and make representation of her case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

30.  The Applicant complained that the Board had failed to inform her of the Board’s Decision by phone.  I see no basis for such complaint.  The Board was not obliged to inform the Applicant of the Board’s Decision by phone.  Sending a copy of the Board’s Decision to the Applicant was in line with the Board’s usual practice.  The Applicant had received the Board’s Decision on 20 July 2019 and managed to file the Form 86 herein on 22 July 2019 well within time for making this application.  No prejudice was caused to the Applicant by the Board’s sending the Board’s Decision to her by post instead of informing her of the same by phone.  I do not see that such complaint may constitute ground for judicial review of the Board’s Decision.

31.  The Applicant disagreed to the Board’s findings on her credibility.  The Board had set out the facts supporting its finding on the Applicant’s credibility in §§6-9 and 18-20 of the Board’s Decision.  To challenge the findings of the Board on her credibility, the Applicant in effect sought to challenge the findings of fact of the Board which is not permissible in a judicial review without error of law, procedural unfairness or irrationality on the part of the Board in making such findings.  I find none in this case. 

32.  The Applicant complained that the Board had “significantly relied on” COI which were unofficial, hearsay or outdated.  In this case, the Board dismissed the Appeal on the ground that the Applicant’s case was not credible and she had failed to establish any of her claimed risks.  The Board did not rely on COI to reach its decision but relied on its analysis of the Applicant’s evidence.  There is simply no factual basis for the Applicant to complain the Board of relying on inappropriate COI.

33.  The Applicant also complained that the Appeal was refused on unacceptable and unexplainable grounds.  No particulars were provided in the Supporting Affirmation to substantiate this complaint and the Applicant did not attend the Court Hearing to provide the same.  Without particulars, such ground is not reasonably arguable in a judicial review. 

34.  The Applicant complained that her BOR 2 risk claim had not been screened by the Immigration Department.  This is plainly wrong.  In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR.  More detailed discussions on the BOR 2 risk claim were set out in §§23-25 of the DOI Decision.  The Applicant’s BOR 2 risk had also been considered by the Board in §§24-27 and 31 of the Board’s Decision.  I find this ground for the intended judicial review wholly devoid of merits.

35.  The Applicant also said that she was unable to find a place to stay safely in her country. (§14 of the Supporting Affirmation) 

36.  The Board found that the Applicant’s account was not credible and that she did not face any of the proscribed risks in Bangladesh.  As such, it was not necessary for her to relocate to any other places in Bangladesh. 

37.  To contend that she was unable to find a place to stay safely in her country, the Applicant sought to challenge the Board’s findings of fact on assessment on risk of harm to her.  As pointed out above, this is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality on the part of the Board.  I do not find any in this case.

38.  The Applicant also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation.  The Applicant provided no particulars or specifics to substantiate these complaints. 

39.  She said that the Director and the Adjudicator should have visited her country to understand her claim.

40.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct investigation of a non‑refoulement claim.  In fact, it is neither practicable nor reasonable for the Board to visit all the risk states of all the cases handled by it before determining the cases.  Such ground for judicial review is not reasonably arguable.

41.  The Board found that the Applicant’s case presented to the Board was “significantly” different from her case presented to the Director (§18 of the Board’s Decision).  The Applicant was unable to give any credible explanation for the discrepancies and the Board therefore found that no credence could be attached to the Applicant’s evidence.

42.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

43.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

44.  In §§22-35 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that there were no evidence to suggest that the Applicant faced the torture risk or the BOR 3 risk.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk.  The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

45.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

46.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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

Form CALL-1