DAS MOLY RANI v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 493/2019

[2020] HKCA 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2019

(ON APPEAL FROM HCAL NO 932 OF 2018)

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J U D G M E N T

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Hon Alex Lee J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 10 October 2019[1] refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim.

2.  The applicant is a 33-year-old national of Bangladesh who entered Hong Kong as a domestic helper in 2014.  Her employment was prematurely terminated on 2 March 2015 and she overstayed without permission of the Director of Immigration (“the Director”). On 22 October 2015, she lodged an application for non-refoulement claim.  She claimed that she would be harmed or killed by her former boyfriend who was in a prominent position in the Awami League.  She also claimed that she had been falsely accused by her former employer of stealing money and she would be pursued and harmed in relation to this matter if she returned to Bangladesh.

The Director’s decision

3.  By Notice of Decision dated 20 December 2016, 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 observed that the applicant had never received any direct physical harm from her former boyfriend and had never suffered any injury based on her own assertion.  The Director considered that her problem was a solely private dispute, she failed to establish a personal and real risk of being arbitrarily deprived of her life in violation of BOR 2, the likelihood that she would be at risk of persecution was assessed to be low and there were no substantial grounds for believing that there would be any real and substantial risk of the applicant being subject to ill-treatment or torture.  The Director also found that the availability of reasonable state protection and internal relocation alternatives would further lower or negate the level of risk.  Thus, the non-refoulement application was rejected. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 18 January 2018.  The Board found that the applicant’s claims were not credible and were fabricated.  The Board also considered that the applicant’s supporting documents were either obtained through corruption or were forged or fraudulent.  The Board found that the applicant failed to substantiate her non-refoulement claim on all applicable grounds and rejected the appeal on 29 March 2018. 

The Judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 25 May 2018 to seek leave to apply for judicial review against the decisions of the Board.

7.  On 8 November 2018, the Judge dismissed the application for want of prosecution as the applicant was absent at the hearing.  However, the dismissal order was subsequently set aside, as the Judge accepted her explanation that she was ill. 

8.  The Judge heard the applicant’s leave application on 19 December 2018 and refused it on 10 October 2019.  It was found that the applicant has failed to raise any valid ground to challenge the adjudicator’s decision and that her application for judicial review has no reasonable prospect of success. 

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the Judge on 24 October 2019.  She said that the Judge did not consider her points for judicial review and failed to show any cause for refusal.  The applicant’s complaints in her written submissions may be summarized as follows:

(1)  She came to Hong Kong to save her life.  Her claim is true but the Director and the Board did not properly investigate her claim.

(2)  At the hearing before the Judge, she could not tell her problem and the Judge failed to point out the cause for rejecting her leave application.  The Judge only stated in one paragraph that she has no point and the decisions were correct.

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[6].

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 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.

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 to the applicant’s first ground, her complaint is just bare assertion without evidence in support.  The Board has given detailed reasons for finding that her claims were untruthful.  She fails to show that there are errors of law or procedural unfairness or irrationality in the decision of the Board.  Therefore, this ground is unmeritorious. 

14.  As regards the applicant’s second ground, contrary to her submissions, the Judge has explained the reasons for refusing to grant leave in paragraphs 19 to 23 of his decision.  The applicant had the chance to give oral submissions at the hearing and a Bengali interpreter was arranged for her.  The Judge’s decision is well founded and the applicant fails to show that the Judge has made any errors of law or failed to take account of relevant matters already placed before him or that his decision was otherwise plainly wrong.  Thus, this ground is bound to fail.  

15.  There is no merit in any of the applicant’s grounds and no prospect of success in the intended application for judicial review.  Accordingly, we dismiss the appeal.