RE DOLY SHARMIN AKTHER

CACV 301/2018

[2018] HKCA 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 2018

(ON APPEAL FROM HCAL NO. 1135 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 28 June 2018 in HCAL 1135/2017 refusing leave to the applicant to apply for judicial review. 

2.  Because of the non-compliance with the direction for lodging skeleton submission within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 27 November 2018), the applicant would be deemed to have waived his right to have an oral hearing.  This appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The applicant is a national of Bangladesh.  She came to Hong Kong to work as a domestic helper and was permitted to remain for employment until 1 November 2015 or two weeks after termination of contract, whichever was earlier.  On 22 January 2015, the applicant’s employment contract was terminated prematurely but she did not leave Hong Kong within two weeks and had overstayed since 6 February 2015.  She was arrested by police on 29 October 2015 and was served with a removal order on 22 December 2015 by the Immigration Department.  On 22 November 2015, she lodged a non-refoulement claim.  Her claim was based on her fear of being ill-treated, or even killed, by money lenders because her late husband could not repay the loan he owed to the money lenders.  She was also worried that she would encounter difficulty living in Bangladesh without any male companion as her husband had passed away.

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1414.  We shall not repeat the same here.

5.  By the Notice of Decision dated 12 July 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk, torture risk, and persecution risk.  By a further decision of 24 July 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 31 October 2017, the Board dismissed the appeal on 7 December 2017. The Board found at [34] and [35] of its decision that the applicant was not a credible witness, and that she did not make a “genuine effort” to substantiate her case and thus failed to establish that there were substantial grounds that she would face a real risk of ill-treatment if refouled.  The Board concluded at [41] to [45] of its decision that the applicant failed to establish her non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 22 December 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1)  Procedural impropriety in failing to consider the issue of state acquiescence by the Director and the Board.

(2)  Failing to conduct sufficient enquiry as to the relevant Country of Origin Information (‘COI’) by the Director.

(3)  Failing to give reasons in rejecting the applicant’s case on the BOR 3 risk by the Director.

(4)  Taking into account irrelevant considerations including the manner of her latest departure from Bangladesh.

(5)  Failing to take into account of her psychological strain and her fear of returning to Bangladesh by the Director and the Board.

(6)  Failing to take into account of the political and human rights conditions of Bangladesh by the Director and the Board.

8.  On 28 June 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [28] – [35] for his refusal to grant leave:

“ Discussion

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

29. 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’.

30. The Applicant referred to the Director's failure to properly consider BOR3 risk and also failed to give reasons. That is not true. In the Director's decision dated 12 July 2016, the immigration officer had given clear reasons for refusing the Applicant's claim with respect to torture risk, persecution risk and BOR3 risk.

31. Many applicants of non-refoulement claim often complained the Director failed to give reasons for the assessment of BOR2 risk. If the Applicant in the present case really meant BOR2 risk rather than BOR3 risk, she was actually not satisfied with the brevity of the Director's further decision dated 24 July 2017 rather than his earlier decision dated 12 July 2016.

32. However, the Director's further decision must be read in conjunction with his earlier decision, where the immigration officer on behalf of the Director had carefully analysed the Applicant's claim. The Applicant failed to submit additional facts regarding the BOR2 risk issue. In such circumstance, the Director was entitled to further consider the Applicant’s claim with respect to BOR2 risk without holding further hearing. The Director by his two decisions had fully dealt with and explained clearly why he refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

33. The Applicant's other complaints lacked specifics. I have reviewed the Adjudicator’s decision and the Director's decision plus further decision under ‘rigorous examination and anxious scrutiny’. I find none of Applicant's complaints is substantiated.

34. In my judgement, the Adjudicator and the Director had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Adjudicator and the Director. Each had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator’s report and the Director’s reports showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

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

The Appeal

9.  The Notice of Appeal was filed on 9 July 2018.  In the applicant’s supporting affirmation filed on the same day, she advanced the following grounds of appeal:

“(1) The Honorable Deputy High Court Judge Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Judge Josiah Lam failed to provide detailed reason in support of her (his) decision.”

10.  The “Exhibit A” attached in the applicant’s supporting affirmation was a compilation of disjoined statements about the applicant’s personal background and quotation of various international covenants, bill of rights and basic law.  It also contained various grounds of judicial review against the Director and the Board which were similar to those advanced before the Judge.

Discussion

11.  As for ground 1, the Judge had set out and considered the Director’s finding that the applicant’s feared situation was the result of a private dispute and there was no state instigation or state acquiescence: see [18] of the CALL-1 Form.  We agree with the Judge’s finding at [33] and [34] of the CALL-1 Form that the Director’s decisions were made under ‘rigorous examination and anxious scrutiny’ and that the applicant’s complaint was not substantiated.  Ground 1 is devoid of merit and doomed to fail.

12.  Ground 2 is a bare allegation unsupported by any reason or argument.  The Judge had duly set out the findings of the Director and the Board and gave a reasoned decision in [28] to [35] of the CALL-1 Form.  This point is plainly not arguable in light of the Judge’s decision.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.