BEGUM TAHURA v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 6/2020

[2020] HKCA 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 6 OF 2020

(ON APPEAL FROM HCAL NO 1127 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 23 December 2019 dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 June 2018 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 13 April 2017 rejecting her non-refoulement claim. 

The applicant’s case

2.  The applicant is a national of Bangladesh aged 37.  She is divorced and has 2 sons and 1 daughter.  The appellant arrived in Hong Kong on 4 November 2014 and was given permission to stay as a domestic helper until 4 November 2016 or within 14 days of the termination of her employment contract, whichever is earlier.  Her employment contract was prematurely terminated in December 2015.  She overstayed until 12 January 2016 when she surrendered to the Immigration Department.  She raised her non-refoulement claim on 31 March 2016. 

3.  The applicant’s claim is based on her fear of being harmed or killed by her creditor.  Her case was set out in detail in [10] of the Board’s decision and summarized by the Judge in [2] to [4] of the Form CALL-1[1].

4.  The applicant’s case, briefly stated, is that:

(a)  In around June 2013, she borrowed a sum of 500,000 Taka from a lender (“Mr. A”) for operating her business which was not running well.  She used part of the loan for payment of the medical expenses incurred by her mother who was diagnosed with blood cancer as well as expenses for her training course as a domestic helper. 

(b)  Mr. A came to her home together with 10 unknown men at one night demanding her to repay the loan.  He also threatened her and her family members that all of them would suffer and be abducted if she failed to repay him.  However, they did not suffer any physical injury.  The appellant reported the incident to the police but she was asked to repay Mr. A to resolve the problem. 

(c)  She arrived in Hong Kong on 4 November 2014 to work as a domestic helper. During her stay in Hong Kong, she had partially repaid the loan through her younger brother, but Mr. A claimed that he had not received any money and informed her the loan had been increased to about one million Taka as at December 2015.  Starting from early 2016, Mr. A and his people went to her family home and threatened her family members for repayment.  In around October 2016, her younger brother was attacked by Mr. A and his people with bamboo sticks.  Her elder brother had reported the incident to the police but he was told by the police that the family should repay the loan. 

(d)  Her elder brother tried to negotiate with Mr. A for more time to repay but Mr. A did not agree and slapped her elder brother.  Her family was afraid and moved her children to her sister’s home.  She was afraid that she would be killed by Mr. A if she returned home.  She knew that Mr. A still threatened her family constantly for repayment. 

(e)  The applicant thought that there was no state protection as the police did not assist her.  In addition, she was unable to relocate to other places in Bangladesh as Mr. A had huge resources in Bangladesh and could easily locate her if she returned to her country.

5.  By his decision dated 13 April 2017, the Director rejected the applicant’s claim having regard to the BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5] grounds. 

6.  The Board held a hearing on 23 May 2018 at which the applicant was present with the assistance of an interpreter.  The applicant told the Board that she did not wish to answer any questions and would like to rely on the information in the bundle.  

7.  By its decision given on 1 June 2018, the Board dismissed the appeal having regard to all the four applicable grounds.       

Application for leave to start judicial review

8.  On 19 June 2018, the applicant filed a Form 86 to apply for leave to judicially review the decisions of the Director and the Board.  The grounds put forward by the applicant were summarized by the Judge in [9] of the Form CALL-1 as follows:

“(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case;

(2)  that the Director failed to take account of or give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies and that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection to its citizens under the duty of due diligence;

(3)  that the Director failed to consider or give sufficient weight to the COI evidence that support the Applicant’s aversions that the police in her home country would not be able to protect;

(4)  that the Director referred to the relevant COI that would suit his pre-conceived conclusion thus showing a clear case of unfair attitude which would render his decision void;

(5)  that the Director failed to apply high standards of fairness required by the Wednesbury test which render his decision unreasonable in the scope of public law;

(6)  that the adjudicator failed to make sufficient enquiry before finalizing his determination; and

(7)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence in support of her claim and her appeal.”

The Judge’s Decision

9.  The applicant was absent from the hearing before the Judge.  The Judge refused leave for the reasons set out in [10] - [15] of the Form CALL-1:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or what relevancy was state acquiescence to her claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI or to apply high standards of fairness, or how did the adjudicator fail to make sufficient enquiry or to give the Applicant sufficient opportunity to provide evidence to support her claim or appeal when in fact she refused to answer any questions from him or raise any such issue at her appeal hearing.

11. As none of the other assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable for her intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the Board found that the credibility of her claim had been seriously undermined by her refusal to answer his questions raised of her claim, and that the fact that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 3 January 2020, the applicant appealed the Judge’s order to this court.  She stated her grounds in her supporting affirmation as follows:

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

(2) The Honorable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of this decision.” (sic)

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

12.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.  

13.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6]and we will not repeat them here.  

14.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8]are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

15.  The applicant filed her skeleton submissions on 13 July 2020 submitting that high standards of fairness are required for making a decision by the decision maker.  The applicant cited various authorities including ST v Betty Kwan[9] and Secretary for Security v Sakthevel Prabakar[10], and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making her liable to be removed.  She also argued that the Board should consider the substantive merits of her appeal.  However, she did not provide any elaborations for her argument which did not support her grounds of appeal.

16.  We heard the appeal on 10 August 2020.  At the hearing, the applicant indicated that what she wanted to say has been written down already and stressed that she could not return to her home country now.

Discussion

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

18.  The applicant’s first ground is misplaced.  The Judge did not hold that there was no state acquiescence or involvement in her case.  As explained by the Judge, the applicant has provided no particulars or elaborations as to how her complaints applied to her case or how the Director or the Board had erred in their decisions.  The Judge was plainly right not to interfere with the evaluation of the risk of harm made by the Board and the Director in the absence of any legal error or procedural unfairness or irrationality in their decisions.

19.  The second ground must also fail.  The Judge had discussed and analysed the applicant’s case with detailed reasons as set out above in the Form CALL-1. 

20.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the Board’s decision.

Order

21.  For the reasons set out above, this appeal is dismissed.