RE BEGUM ROKSANA

CACV 303/2019

[2019] HKCA 1198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2019

(On appeal from HCAL 171 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Ms BEGUM Roksana, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 28 June 2019 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 14 December 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 March 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 38, is a fear of being harmed or even killed by the creditors[1] of her husband, Islam Sarder (“Sarder”), for failing to repay Sarder’s debts to them. Such alleged fear is said to arise out of the following circumstances:

(1)  In 1998, the applicant married Sarder and set up home with him in Launch Ghat, Madaripur, where she gave birth to and raised 3 children who are now about 17, 13 and 8 years of age.

(2)  Sarder was mostly unemployed, working only sporadically, ever since the applicant met him. He often hung out with members and supporters of the ruling political party, the Awami League (“AL”). He also drank and gambled.

(3)  Beginning from 2011, to support the family, the applicant started to work as a housemaid in Madaripur, earning just about 500 Bangladesh taka per month.

(4)  In 2013, Sarder left the applicant and their children, telling the applicant by telephone that he had to hide from his creditors to whom he owed a lot of money. The applicant has since lost touch with Sarder and does not know his current whereabouts.  They are, however, not officially divorced.

(5)  Sarder had apparently borrowed from many different creditors. One evening in January 2014, some 8 to 10 men came to the applicant’s home to look for Sarder. The applicant recognised 2 or 3 of them with whom Sarder had hung out.  When they did not see Sarder, they claimed to the applicant that they were members of the AL and that Sarder owed them a lot of money. They demanded the applicant to either produce Sarder or repay his debts to them. As the applicant could do neither, they punched and kicked her and her son (who tried to protect the applicant) and vandalised her home. The men left after 30 minutes or so. As a result of this incident, the applicant sustained an open wound in her left arm and bruises and swellings all over her body. Her son was injured in his left leg, head and back. They were both hospitalised for 2 to 3 days for the injuries. 

(6)  After this incident, the applicant fled with her children to her parents’ home, which was at a walking distance of about an hour from her own home.

(7)  Then, one day in February 2014, a group of about 7 to 8 persons came to the applicant’s parents’ home. 2 or 3 of them were at her house in January. They were all armed with pistols.  One of them put a pistol to the applicant’s temple to threaten her to either produce Sarder or repay his debts to them. The applicant’s response that she was unable to do either angered them who then slapped and punched her. The applicant was however not really injured.

(8)  The applicant did not complain about either of these incidents to the police, which was known to be corrupt and would assist only those who paid a bribe. The applicant did not have any money.

(9)  She however thought that it was no longer safe for her to remain in Bangladesh. 

(10)  She continued to stay with her parents until about July or September 2014. Then, she made her way to a training centre in Bogra where she stayed for 2 to 4 months while looking for employment overseas.

(11)  On 19 November 2014, the applicant left Bangladesh after obtaining an employment visa to work as a foreign domestic helper in Hong Kong, leaving her children in the care of her father and mother who, according to the applicant, have since passed away in 2015 and 2017 respectively.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant arrived in Hong Kong on 20 November 2014.  After her employment contract was prematurely terminated on 31 December 2015, she did not leave within 14 days as required by the law and overstayed from 15 January 2016. She surrendered to the Immigration Department on 29 January 2016. She raised the NRF Claim by way of written representations dated 14 March, 23 June and 27 July 2016. Her non-refoulement claim form was submitted on 23 January 2017.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representatives conducted a screening interview on 20 February 2017 with the applicant who then had legal representation by the Duty Lawyer Service.

5.  The Director’s Decision covered all 4 applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5]. The Director found the NRF Claim to be unsubstantiated.

(1)  First, the level of risk of the feared ill-treatment was likely to be low, having regard to the low frequency of the applicant’s encounters with Sarder’s creditors, the nature of the assaults and the relatively minor injuries inflicted which did not attain a minimum level of severity to warrant non-refoulement protection. 

(2)  Should Sarder’s creditors have any real intention to inflict serious or fatal harm on the applicant, they could have done so given that they were armed with pistols in the second incident described by the applicant. 

(3)  There is no evidence that they had after such incident made any further attempts to locate or chase up the applicant.  They had in fact made no re-appearance notwithstanding the applicant’s continued stay at her parents’ house for some months before she left for Bogra.

(4)  By choosing to continue to stay with her parents, the applicant herself did not seem to have perceived any imminent harm from Sarder’s creditors.

(5)  That the applicant did not encounter these creditors again in Bogra also suggests that that they at most have some localised influence in Launch Ghat and are not as powerful or resourceful as the applicant asserted.

(6)  Second, the applicant chose not to enlist help from the police after the attacks in January and February 2014 in the belief that the police would not render assistance without a bribe. There is, however, objective country of origin information (COI) showing that structured police forces are in place in Bangladesh; that police reforms have been and are ongoing in Bangladesh with positive results in recent years and that the authorities in Bangladesh do take action to protect the rights of its citizens and have endeavoured to combat corruption.  The availability of state protection would further lower or even negate the level of risk (if any).

(7)  Third, internal relocation alternatives are available to the applicant and her children in a big and populous country like Bangladesh. Being an able-bodied adult female with working experience as a housemaid in Bangladesh and as a domestic helper in Hong Kong, it is not unduly harsh or unreasonable for her to relocate within Bangladesh (e.g. to Bogra where she had stayed for an extended period before coming to Hong Kong). There is no evidence that Sarder’s creditors are powerful or resourceful enough, or would be prepared to expend their resources, to find the applicant throughout Bangladesh.

Appeal to Board and Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 3 April 2017.

7.  After an oral rehearing of the NRF Claim on 27 October 2017, at which the applicant testified and answered questions by the Board through a Bengali interpreter, the Board dismissed the applicant’s appeal on all 4 applicable grounds for non-refoulement protection on 14 December 2017.

8.  In gist, although the Board considered the applicant to have discharged the burden of establishing her husband’s debts and the threats and assaults against her by his creditors, such ill-treatments do not amount to persecution whether for a convention reason or otherwise or attain a minimum level of severity to ground a belief that the applicant, if returned to Bangladesh, would face a genuine and substantial torture risk, “BOR 2” risk or “BOR 3” risk. Even if the applicant had been able to show that she would face a real or genuine risk of the claimed harm, such risk was confined to her home district. As an able-bodied adult with both domestic and overseas work experience, the applicant can relocate to another part of Bangladesh such as Dhaka, Chittagong or Khulna without any hardship.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 171/2018 on 5 February 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.  As summarised by the Judge in [11] of the Form CALL-1 dated 28 June 2019, [2019] HKCFI 1036 (“Form CALL-1”), the Form 86 raised the following grounds for judicial review:

(1)  that the Director and the Board reached “the wrong decision” in assessing the NRF Claim;

(2)  that their decisions were not reasonable or fair as required by the Wednesbury test;;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings which she may face if deported back to Bangladesh; and

(4)  that the Board failed to give her sufficient time or opportunity to adduce evidence relevant to the NRF Claim and the appeal.

10.  After hearing the application for leave for judicial review in open court at which the applicant was present to make oral submission, the Judge refused leave. His reasons can be found in [12]-[16] of the Form CALL-1:

“12. 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 her case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to her claim, or how did the adjudicator fail to give her sufficient or opportunity to produce her evidence in support of her claim or her appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness in their decisions being clearly and properly shown by the applicant, I do not see how any of these complaints is reasonably arguable for her intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

14. In the applicant’s case, as it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.  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.

16.  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 and grounds of appeal

11.  By a notice of appeal filed herein on 3 July 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds:

(1)  that she “will face hardship if he (sic) is to return back to his (sic) home country” (“Ground 1”); and

(2)  that “the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (“Ground 2”)

12.  In her skeleton submission dated 10 September 2019, the applicant referred to ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish her claim. However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of her claim.

13.  The applicant appeared in person at the hearing of the appeal on 21 October 2019. Apart from informing the court that she is still unable to get in touch with Sarder, she had nothing to add to the notice of appeal or the skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

14.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

15.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

16.  Applying these principles, first, as summarised in [5] and [8] above, the NRF Claim failed on the issues of assessment of risk and availability of reasonable internal relocation options at both tiers of the Unified Screening Mechanism. In particular, the applicant has been found by the Board to be facing no real or substantial risk of harm from Sarder’s creditors upon her return to Bangladesh, especially if she relocates to another part of the country away from her hometown. The applicant’s bare assertion under Ground 1 that she will face hardship if she is repatriated back to Bangladesh goes against such findings by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [14] above. The Board heard the applicant. It provided detailed reasons in [40]-[66] of its decision, explaining why the applicant’s testimony of the 2 encounters with Sarder’s creditors is insufficient to prove any of the proscribed risks. It can be seen from [9] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any or any arguable errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against her. Nor has she done so before this court. Ground 1 is devoid of merit.

17.  Ground 2 targets the Board. As explained in [15] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not, in the notice of appeal or skeleton submission before us, stated in any or any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

18.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has the applicant alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information.  Ground 2 is likewise unmeritorious.

Disposition

19.  For these reasons, we see no basis to interfere with the Judge’s Decision.Accordingly, we dismiss the appeal.