RE SULTANA REBAKA

CACV 448/2019

[2020] HKCA 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 448 OF 2019

(ON APPEAL FROM HCAL 1146/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 19 September 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of Bangladesh.  She arrived in Hong Kong on 9 April 2014 with a permission to remain as a domestic helper.  Her employment contract was however prematurely terminated, and she was required to depart Hong Kong within 2 weeks after the termination.  She did not do so, and overstayed illegally.  She surrendered to the Immigration Department on 27 October 2014 and raised a claim for non-refoulment protection on 29 January 2015.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her abusive husband and members of her in-law’s family.  The factual background of the case was summarized by the Judge in [13] of the Form CALL-1 ([2019] HKCFI 2333).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].  By a notice of decision dated 6 September 2017[5], the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 15 March 2018 at which the applicant elected to give evidence.  By a decision given on 13 June 2018[6], the Board dismissed the applicant’s appeal/petition.  In the decision, the Board stated that, notwithstanding the inconsistencies and irregularities in aspects of her evidence, it was prepared to accept that she was subjected to domestic violence from her husband and his family[7].  However, the Board took the view that her husband was a private individual and there was no state involvement in the matter[8].  Hence, the harm perceived by the applicant did not fall within the statutory meaning of “torture”[9]. Furthermore, given the lapse of time and the lack of intention to reunite with her husband, the Board did not find any real risk that, if returned to Bangladesh, the applicant would be subjected to ill-treatment from her husband[10]. The Board also found that state protection was available[11] and internal relocation was a viable option  for the applicant[12].  Accordingly, the Board was not satisfied that the applicant would face a substantial risk of harm if refouled. 

The Judge’s decision

6.  By a Form 86 filed on 20 June 2018, the applicant sought leave to apply for judicial review against the Board’s decision.  In the document[13] attached to the Form 86, the applicant put forth the following nine grounds of review:

(1)  The adjudicator misdirected himself that the applicant was required to experience torture in the past to establish substantial grounds for being subjected to torture in future;

(2)  The adjudicator failed to carry out sufficient research and inquiry into the country of origin information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(3)  The adjudicator cherry-picked COI information and relied on outdated COI;

(4)  The adjudicator failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(5)  The adjudicator failed to analyse state protection in Bangladesh.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(6)  The adjudicator took into account incorrect facts and failed to give weight to facts favorable to the applicant.  There were no particulars for this ground;

(7)  The adjudicator failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(8)  The adjudicator applied incorrect standard of proof; and

(9)  The duty lawyer failed at the first instance to give sufficient legal representation.

7.  In her supporting affirmation filed on the same date, the applicant set out a number of additional grounds.  In [20] of the Form CALL-1, the Judge categorized them into six main ones.  Briefly stated, ground (1) was about the absence of screening mechanism for the BOR 2 risk; grounds (2) and (3) concerned the late delivery, as well as the lack of translation, of the hearing bundle; ground (4) related to the lack of legal representation; and grounds (5) and (6) criticized the Board regarding its handling of the COI materials and for its failure to understand the applicant’s situation. 

8.  The hearing was originally fixed to be heard on 13 December 2018, but the applicant failed to attend the hearing.  The Judge dismissed the application for want of prosecution.  After hearing the applicant on 20 February 2019, the Judge was satisfied with her explanation for the absence.  The dismissal order was set aside and the application for leave to apply for judicial review was restored.

9.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [21] – [27] of the Form CALL-1 as follows:

“ 21.  The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. She considered that she had had a fairing hearing before the Board. She understood their respective Decisions.

22.  It is obvious that the Board accepted her complaints that she was subjected to domestic violence by her husband and his family. However, the Board found that such acts did not fall within the context of the relevant statutory provisions and Convention. The Board was perfectly entitled to make such findings. However, I shall deal with the applicant’s grounds above.

23.  Ground (1) fails because this is not the fact of the case. The Director had made the assessment of BOR 2 risk after the screening process as can be seen from the Director’s Decision.

24.  Grounds (2) and (3) are inconsistent with what the applicant said in court. They fail.

25.  Ground (4) fails as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that as the applicant had been legally represented, she does not have the absolute right to free legal representation at every stage of the proceedings. [22]

26.  Grounds (5) and (6) are bare allegations without any evidence to support them. They fail.

27.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The appeal

10.  On 24 September 2019, the applicant filed a notice of appeal against the Judge’s decision.  It was stated in the notice that:

“ On 19 September 2019, the Honourable Justice of the High Court K W Lung dismissed my claim of judicial review. I am so sorry to say about the judgment that Justice did not consider any of my points about error of law or procedural error. So I am not satisfy and appeal for asking justice.” (sic)

11.  In her written submission lodged on 3 December 2019, the applicant stated for the first time that her enemy was Awami League (“AL”), the current ruling party in Bangladesh, and that she was a worker for their political rival, the Bangladesh National Party (“BNP”).  She also complained about the quality of translation and the brevity of the screening interview.

12.  By a letter dated 24 September 2019, the applicant gave consent that this appeal could be heard before a 2-member court.

13.  We heard the appeal on 16 April 2020.

General principles

14.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers 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 issue at hand, the court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced before, and rejected, by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it was a fresh application for judicial review.

Discussion

15.  In the present case, the Board rejected the applicant’s non-refoulement claim on the ground that it was not satisfied that the applicant would face a substantial risk of harm if refouled.  It was also found that state protection was available and internal relocation was a viable option.  As explained above, the assessments of risk of harm, the availability of state protection, and the viability of internal relocation are all within the province of the Board.  The Court will not intervene with such findings unless they contained errors on public law grounds.  Having considered the materials available before him, the Judge did not find any of such grounds.

16.  In our view, the Judge gave adequate reasons for his determination addressing the grounds raised by the applicant in her supporting affirmation. 

17.  However, the Judge did not address the grounds in the Form 86.  In the circumstances, if there is any substance in those grounds the appeal should be allowed. 

18.  Having considered those grounds in the Form 86, we are of the view that they are devoid of any merits. Indeed, we have come across similar arguments advanced as general assertions on many occasions in handling appeals of similar nature.  As this Court (differently constituted) pointed out in Re Mizan Sikder [2019] HKCA 20 at [17], many of these arguments lack specific reference to requisite particulars on the facts of the case.  Such general assertions cannot constitute valid grounds for challenging the Board’s decision. 

19.  What was stated in the notice of appeal is only a general expression of dissatisfaction in respect of the Judge’s decision.  It does not constitute a valid ground of appeal. 

20.  We do not accept what was submitted in the applicant’s written submission.  They are assertions not supported by evidence.

21.  First, we note that the applicant did mention to the Director that her husband was a member of AL and her in-law’s family were all supporters of the same political party.  However, not only did she not mention that she was affiliated with the BNP, she expressly told the Director that she and her parental family had no political affiliation at all[14].  Her written submissions therefore diametrically contradict what she had told the Director.  Before the Board, she also confined her case to fear of attacks from her husband.  There was also no reference to political rivalry before the Judge. We have no hesitation in rejecting them.

22.  Secondly, the complaints about the quality of translation and the brevity of screening interview are new arguments that are fact-and-evidence sensitive. 　No explanation has been given for such grounds not having been canvassed at the Court of First Instance.  As explained, this Court will not entertain such new arguments on appeal.  In any event, these complaints lack sufficient particulars to constitute valid grounds of appeal.  

23.  In this appeal, the applicant fails to persuade us that she has any viable ground that can reverse the decision of Judge.  Having considered the martials available before us, we agree with the Judge that leave to apply for judicial review should be refused.

24.  For these reasons, we dismiss the appeal.