MARMA MAYSAU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 143/2024, [2024] HKCA 1016

On appeal from [2024] HKCFI 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 143 OF 2024

(ON APPEAL FROM HCAL NO 1523 OF 2021)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 11 April 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 12 April 2024.

2.  The applicant is a national of Bangladesh. She entered Hong Kong on 24 September 2019 to work as a foreign domestic helper. Her employment contract was pre-maturely terminated on 3 October 2019 and she subsequently overstayed. She was arrested by the police on 17 April 2020 for the offences of breach of condition of stay and administering a poison or other noxious thing with intent to procure miscarriage. She lodged her non-refoulement claim in June and July 2020 on the basis that, if refouled, she would be ill-treated or killed by Aong Kay Ching (“Aong”) because she refused to marry him as his third wife.

The decision of the Director

3.  By a Notice of Decision dated 19 November 2020, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director considered that the absence of injury is indicative of the unlikelihood of the applicant’s future risk of harm upon her return to Bangladesh. The Director held there is no evidence to show that Aong was as powerful or influential as alleged or that the applicant is a person of adverse interest to the Bangladeshi authorities. The Director further found that the alleged problem with Aong was localised in nature so the applicant may move to other places in Bangladesh to stay away from Aong. The Director also found that state protection is available which further lowers or negates any perceived risk.

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 11 May 2021. The Board considered that the applicant’s experiences and her fear of ill-treatment do not amount to persecution for a convention reason. The Board was not satisfied there are substantial grounds for believing that she would face genuine and substantial risk of being subjected to severe ill-treatment under BOR3, that she would be in danger of being subjected to torture, or that her rights under BOR 2 would be violated if refouled. The Board further found that the alleged risk of harm was confined to the local area where the applicant had lived and there is no evidence to show that it would be unreasonable or unduly harsh for her to relocate elsewhere in Bangladesh. Thus, the Board rejected the appeal on 21 October 2021.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 3 November 2021 to seek leave to apply for judicial review against the decision of the Board. She did not put forward any specific ground for her intended challenge.

The judge’s decision

7.  The applicant was absent at the hearing of the leave application scheduled on 15 January 2024 before DHCJ K W Lung. The judge therefore dealt with the application on paper. The judge found that the applicant has no valid reason to challenge the decision of the Board. As the applicant did not have any realistic prospect of success in her proposed judicial review, the judge refused the leave application on 11 April 2024.

Grounds of appeal

8.  The applicant’s grounds of appeal in the Notice of Appeal and written submissions may be summarised as follows:

(1)  The adjudicator made many errors;

(2)  The High Court did not consider her arguments and gave a “one-eyed” judgment. There was no oral hearing. The court was wrong and there is no justice.

9.  The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing. By a letter dated 1 October 2024, the applicant informed the Court that she would like to withdraw/close her case in this appeal because she wants to go back to her home country as soon as possible.

Legal Principles

10.  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.

11.  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 scrutinising 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 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). 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.

12.  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

13.  As mentioned above, a hearing was fixed for the applicant’s application for leave to seek judicial review on 15 January 2024 but she was absent without giving any prior notification or explanation. Therefore, it is not open to her to complain that the Court of First Instance did not conduct an oral hearing.

14.  The rest of her grounds are just bare assertions without particulars or evidence in support. In particular, she did not put forward any specific grounds for her intended judicial review in her previous application at the court below. She did not identify any particular error or unfairness in the decisions of the Board and the judge.

15.  For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss this appeal which is also in accordance with the applicant’s request.