RE SHILPE FARHANA EASMIN

CACV 27/2024, [2025] HKCA 648

On appeal from [2024] HKCFI 27

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 27 OF 2024

(ON APPEAL FROM HCAL NO. 3183 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 9 January 2024 ([2024] HKCFI 27) dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) which dismissed her appeal against the decision of the Director of Immigration (“the Director”) rejecting her non‑refoulement protection claim.

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers.

3.  The applicant is a national of Bangladesh aged 39. She entered Hong Kong in May 2015 with permission to remain to work as a foreign domestic helper. After her employment was terminated on 30 June 2015, she did not depart and has since overstayed. On 23 July 2015 she was arrested by the police. She later raised a non-refoulement claim based on fear of being harmed or killed by the Awami League (“AL”) supporters who had been harassed, threatened and assaulted her because she and her husband supported and had worked for the Bangladesh Nationalist Party (“BNP”). The basis of her claim to the Director was set out in details in [6] of the Director’s decision and [5] to [19] of the Board’s decision. On her appeal to the Board, the basis of the claim was changed. She relied on domestic violence from her husband whom she claimed was an AL supporter and the president of a local AL unit whereas she and her family were BNP supporters.

4.  By a Notice of Decision dated 23 October 2018, the Director rejected the applicant’s non-refoulement claim, having considered the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 26 September 2019. At the hearing, the applicant told the Board that only she and her family were BNP supporters whereas her husband and his family were AL supporters, and that in truth her husband was the only cause of her problem in Bangladesh. She explained she had experienced domestic violence from her husband throughout the marriage, and that consequently in 2014 she left with their children to live with her parents in Narail. After that, the AL supporters connected with her husband started to harass her and her family, including assaulting her brother. Her parents and her children later relocated to Dhaka. She and her husband have no contact since 2014. She knows her husband has remarried.  

6.  By a decision given on 23 October 2019, the Board dismissed the appeal. In gist, for the reasons given in [39] to [57], the Board found her evidence on the key aspects of the non-refoulement claim made to the Director was not reliable and the account she gave to the Director was not credible. The Board, however found her oral evidence relating to her claim of domestic violence compelling and persuasive. The Board accepted that she was subject to physical and psychological violence throughout her cohabitation with her husband from about 2000 to 2014, this was the prime motivation for her leaving Bangladesh to work in Qatar and then Hong Kong, and that her husband has a second wife and has not been in contact with her or their children. The Board also found that there was insufficient evidence of state involvement, the risk of harm from her husband was remote since he had remarried and has not been in contact since 2014, and state protection and internal relocation were reasonably available. The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

7.  The applicant filed a Form 86 and an affirmation on 28 October 2019 to seek leave to judicially review against the decision of the Board. She raised a number of grounds against the Director and the Board. The Judge heard the application at a hearing held on 1 November 2023. By a Form CALL-1 dated 9 January 2024, he dismissed the application, holding that the intended judicial review had no prospect of success.

8.  The Judge summarised the applicant’s grounds against the Board at [11] and gave his reasons for rejecting them at [12] to [16] as follows:

“11. …

(1) The Board’s Decision is unfair and unreasonable as it did not take into consideration that the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.

(2) The adjudicator acted procedurally unfair by placing too much reliance on the Country of Origin Information (“COI”), but had failed to consider her personal background and experience.

(3) The adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response. The adjudicator also failed to take into account the nexus of political parties and official corruption which exists in her country, making the persecution effectively persecution by the State.

(4) The Board’s finding was irrational.”

“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. Before me, the applicant said she understands the Board’s Decision, but there is no safe place for her to live in her country, so she wants to stay in Hong Kong.

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 raised by the applicant, they are her personal views or assertions without any evidence in support. The Court of Appeal in in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.’

See also Re Haider Khalil [2021] HKCA 223 [16].

16. The applicant has raised no valid ground to challenge the Board’s Decision.”

9.  By a notice of appeal filed on 19 January 2024, the applicant sought to appeal the Judge’s decision to this court on the following grounds:

(1)  The Director failed to consider state acquiescence in that the presence of state acquiescence in her case had not been acknowledged or given proper weight.

(2)  The Board and the Court failed to address her argument regarding state acquiescence.

(3)  The Board did not conduct adequate inquiry or investigation into the case before stating that the applicant failed to provide credible evidence to substantiate the material elements of her claim.

(4)  The Director was biased and unfair in his selective inclusion of country-of-origin information that supported a predetermined conclusion.

(5)  The Director and the Board failed to appreciate the gravity of her circumstances which warranted a more thorough evaluation of her case.

10.  The applicant has lodged a written submission which contended that the Board acted in a procedurally unfair manner without properly assessing the applicant’s credibility and high standards of fairness are required, citing extensively from cases on high standards of fairness and Wednesbury unreasonableness.

Our reasons for decision

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and 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), who are the primary decision makers. 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. Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case. The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

12.  It is evident from reading the Board’s decision that there is no objective basis for the applicant’s complaints that the Board did not adequately investigate her claim or appreciate the gravity of her case, or that its assessment of the applicant’s credibility was procedurally unfair:

(1)  The Board’s decision has set out in great details the applicant’s evidence both before the Director and the Board as well as the applicant’s responses to the Board’s questions on the inconsistencies between the two versions. The applicant was afforded ample opportunity to explain and elaborate on her case and also the variations between the account she gave to the Director and that to the Board.

(2)  It is clear from applicant’s evidence that there was a shift in the basis of her non-refoulement claim. Before the Board, the applicant raised a new case of domestic violence and no longer relied on the account she gave to the Director. Among other things, she stated that her husband and his family were AL supporters, which is a material departure from the claim she made to the Director. She gave no convincing explanation for the shift.

(3)  The Board had carefully analysed the applicant’s evidence and identified significant discrepancies and contradictions. It had also fully explained the basis for rejecting the factual account given to the Director as unreliable, and also the applicant’s new assertion that her husband was an AL supporter and an office bearer.

(4)  Notwithstanding its rejection of the applicant’s previous case made to the Director, the Board went on to consider the new case of domestic violence and accepted it and assessed her appeal on this new basis.

13.  In light of the change in the basis of her non-refoulement claim and the Board’s rejection of her assertion that her husband was an AL supporter, the Board was entitled to hold that there was insufficient evidence to show state involvement.

14.  Regarding the complaint of bias and unfairness against the Director, it is a vague, general and unparticularized assertion. In any event, the applicant had already appealed the Director’s decision to the Board. The applicant also failed to relate the legal principles and the judgments quoted in the written submission to her appeal and her claim.

15.  In the circumstances, the applicant fails to show that her intended judicial review has a reasonable prospect of success. Leave to apply for judicial review ought therefore to be refused.

16.  For the above reasons, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.