LAELA MOSHAMMAD RUNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 457/2021

[2021] HKCA 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 457 OF 2021

(ON APPEAL FROM HCAL NO 2314 OF 2020)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge P Li on 28 September 2021[1] (“the Judge’s Decision”) refusing to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim dated 7 May 2020 (“the Board’s Decision”).

2.  The applicant is a national of Bangladesh of 36 years old.  She last arrived in Hong Kong on 6 September 2014 as a foreign domestic helper. However, after her employment contract was prematurely terminated on 18 May 2015, she did not depart within the time limit and had overstayed.  On 21 March 2016, she surrendered to the Immigration Department.  She lodged her non-refoulement claim on 9 December 2016.  Her claim was made on the basis that she would be harmed or killed by her husband because she refused to transfer the family asset to him and to join him in the Awami League (“AL”).  

The Director’s decision

3.  By a Notice of Decision dated 17 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds, being torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5].

4.  The Director considered there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged.  The Director found that the applicant’s husband had no real intention to kill her and there was no evidence indicating the involvement of AL or the state in their private dispute.  The Director also considered that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk.  Thus, the non-refoulement application was rejected by the Director.

The Board’s Decision

5.  The hearing of the appeal against the Director’s decision was conducted before the Board on 13 January 2020.  As the applicant refused to answer most of the questions, the Board explained to her its duty to seek clarification of her evidence even though she had the right not to answer the questions.  The Board found her evidence on the material aspects of her claim unrealistic and illogical and considered her testimony unreliable and incredible.  It further found that the alleged injuries the applicant sustained as a result of her husband’s constant assaults were not too serious to warrant the fear she claimed of being harmed or killed if refouled.  In any event, state protection was available to the applicant and she could consider relocating to other cities in Bangladesh, such as Dhaka, upon refoulement.  The Board therefore rejected her appeal.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 24 November 2020 to seek leave to apply for judicial review against the Board’s Decision.  On 22 March 2021, she filed another affirmation to the court, seeking to withdraw her leave application.  By an order dated 1 April 2021, DHCJ P Li granted the withdrawal of the applicant’s leave application.

7.  Thereafter, on 21 June 2021, the applicant wrote to the court requesting to reinstate her leave application.  She explained that the reason for the withdrawal was because her family was trying to solve her problem in her home country.  However, the efforts were in vain and hence her application for reinstatement.

8.  On 22 June 2021, the judge directed that the reinstatement application be dealt with together with the applicant’s leave application.

The Judge’s Decision

9.  The judge heard the applications on 2 August 2021.  At the hearing, the applicant elaborated on her reasons for reinstatement.  Whilst having grave doubts, the judge granted her the reinstatement and considered her leave application.  He found that the applicant’s delay of more than 3 months was significant and she offered no cogent explanation for the delay.  He proceeded to consider the merits of her intended application and her major complaints.  He held that the Board had analysed the evidence in great detail and he agreed with the Board there were critical inconsistences that undermined the applicant’s credibility and there was no error of law or procedure.  As a result, the applicant failed to show she has reasonable chance of success in her proposed judicial review. Hence, the judge refused to grant her extension of time to bring the leave application.

Grounds of appeal

10.  The applicant filed a Notice of Appeal against the Judge’s Decision on 30 September 2021.  In her Notice of Appeal, the applicant argued that she would face hardship if refouled.  She also contended that the Board had relied on hearsay evidence and outdated information.

11.  The contentions in her submissions in writing may be summarized as follows:

(1)     The judge failed to apply the principle of irrationality when assessing the Board’s Decision;

(2)     The judge failed to apply the principle of procedural fairness when assessing the Board’s Decision;

(3)     The judge failed to apply greater care when assessing the applicant’s evidence;

(4)     The judgment of “the applicant’ Summon of the court of first instance” was wrong;

(5)     The Board failed to give sufficient chance for the applicant to arrange for relevant evidence in support of her non-refoulement claim;

(6)     The Board relied on information that was not officially recognized or was hearsay.

Legal Principles

12.  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.

13.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for repeating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s grounds in her Notice of Appeal do not constitute viable grounds of appeal against the Judge’s Decision.  She simply repeated the arguments that were raised and rejected by the judge. 

16.  As for the contentions in her submissions in writing, they are just bare assertions without particulars or evidence in support.  Contrary to the applicant’s assertions, it can be seen from §§18, 26 to 28 of Judge’s Decision that the judge had scrutinized the Board’s Decision in light of the applicant’s grounds of review.  He concluded that the Board did not violate the principle of irrationality or procedural unfairness and that it had adhered to a high standard of fairness.  The applicant failed to give any particulars or elaboration to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  For the above reasons, there is no prospect of success in the intended application for judicial review and no merit in the appeal.  We therefore dismiss the appeal.