RE RANI SHANTONA

CACV 333/2020

[2021] HKCA 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2020

(ON APPEAL FROM HCAL 1640/2019)

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J U D G M E N T

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

Introduction

1.  On 30 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 30 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 February 2019 rejecting the applicant’s non-refoulement claim.

2.  On 10 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  She entered Hong Kong on 17 October 2017 on the strength of her passport and was employed as a foreign domestic helper until 13 October 2018 when her contract was prematurely terminated.  The applicant illegally overstayed in Hong Kong instead of departing from Hong Kong within two weeks of termination of her employment as required under her visa conditions.  She was arrested by police on 15 November 2018, and lodged her non-refoulement claim on 19 December 2018.

4.  The applicant’s claim was based on the fear that, if she returned to Bangladesh, she would be harmed or even killed by her husband’s creditors or by Islamic extremists who tried to force her to convert from Hinduism to Islam.  The factual background was succinctly summarized by the Judge at [6] of the Form CALL-1 ([2020] HKCFI 1744).

5.  By notice of decision dated 28 February 2019, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 May 2019, during which the applicant was interviewed by the Board.  The Board found that the applicant was not a credible or reliable witness, and took the view that most, if not all of the core assertions in the non-refoulement claim were fabricated or wholly unreliable.

7.  Thus the Board found that there was no real risk of harm, and dismissed the applicant’s appeal on 30 May 2019 on all the applicable grounds.

Decision of the court below

8.  On 14 June 2019, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  Her grounds for relief on judicial review of the Board’s decision, were summarized by the Judge at [14] of the Form CALL-1.

9.  On 30 July 2020 the Judge refused to grant leave to apply for judicial review on the paper.  The reasons for the refusal were set out at [14] – [21] of the Form CALL-1 ([2020] HKCFI 1744, HCAL 1640/2019) as follows:

“ 14. She had attached the grounds on which relief is sought to Form 86. They are grounds against the Director and the Board. I shall focus on the grounds relating to the Board.

1. The Adjudicator failed to make sufficient enquiry before finalizing the determination, having failed to take into account that she was being kept in custody in the immigration detention centre and failed to give sufficient time or chance to her to arrange relevant evidence to support her claim.

2. The Adjudicator reached the wrong decision, which is unfair and unreasonable.

3. The state failed to provide sufficient protection.

4. She was tortured by the state law enforcement agencies.

DISCUSSION

15. As the Board did not accept her core evidence in support of her claim, there is no factual basis in support of her claim.

16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court. The applicant cannot complain that the Board had not considered the evidence which she did not adduced at the appeal hearing unless the Board has the duty to elicit such evidence on its own volition. There is simply no such evidence at the hearing before the Board.

17. Although the applicant was being detained in the immigration detention centre, she did not raise the issue that she needed time to obtain evidence before the Board. Up till now, the applicant is still unable to provide any information as to what evidence she wanted. This issue is therefore not relevant for her application and will not be considered. The rest of Ground (1) are her opinions without any evidence in support of them and will not assist her application.

18. Grounds (2) and (3) are her opinions without any evidence in support.

19. Ground (4) was not raised in her statements to the Director or the Board.

20. There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to her case.

21.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to this Court

10.  On 10 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision, in which her stated grounds of appeal were:

(1)  the Judge wrongly concluded that the Board had not erred in its decision;

(2)  the Board decided that the applicant was not a credible witness;

(3)  lack of clarity and transparency in the Board hearing bundle, which was not read or interpreted to her prior to the Board hearing; and

(4)  the applicant’s testimony was not interpreted correctly between her language and English during the Board proceedings.

11.  We can observe at this juncture that Grounds (2) to (4) had not been raised at the court below. Ground (1) is a general assertion.

12.  On the same day that she filed the Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

13.  This Court directed on 17 December 2020 that the applicant must lodge her written submissions on appeal by 14 January 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

14.  The applicant failed to lodge any submissions as directed.  The hearing date was therefore vacated and this appeal is processed on paper without oral hearing.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 and rejected by the judge or for running arguments which could and should have been raised but not raised before 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.  And

(3)  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 is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.  In her grounds of appeal, the applicant did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its findings that she was not a credible or reliable witness, and that most, if not all of the core assertions in the non-refoulement claim were fabricated or wholly unreliable.  The Board found that there was no real risk of harm.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  As for the applicant’s complaint about the bundle, this was not a point raised before the Judge. Documents in the hearing bundle should have been those placed before the Director or those referred to in the Director’s Decision (when the applicant was assisted by a Duty Lawyer assigned to her).  There was no complaint at the hearing before the Board (where an interpreter was available) about difficulty in understanding documents in the bundle.  It is also clear from the Decision of the Board that it had carefully gone through the relevant COI materials with the applicant at the hearing and offered her adequate opportunity to comment on the same.

19.  As this Court (differently constituted) has repeatedly held, 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; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

20.  The applicant did not pinpoint any specific area of alleged inaccurate translation.  This Court cannot act upon such vague and general assertion.  If there were real concerns about the accuracy of the language interpretation at the Board hearing, she should have been raised it with the Board immediately.  Further, this point was not relied upon before the Judge.

21.  Having considered the materials before us, we are of the view that the appeal has no merit and the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

22.  For these reasons, this appeal is dismissed.