SHAPLA MST v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 442/2019

[2020] HKCA 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 442 OF 2019

(ON APPEAL FROM HCAL 2584/2018)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) on 19 September 2019 in HCAL 2584/2018 refusing leave to the applicant to apply for judicial review.

2.  The appeal hearing was initially fixed for 3 March 2020.  Due to the public health risk arising from the COVID-19 pandemic and the general adjournment of proceedings, the appeal hearing was adjourned to 18 May 2020.   Pursuant to the directions of the Registrar of Civil Appeals given on 30 October 2019, the applicant shall lodge with the court 3 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 20 April 2020.  Despite the letter sent by the court on 8 April 2020 reminding the applicant of the aforesaid directions, the applicant failed to lodge her written submission.  The Registrar further directed that in the event of the applicant’s failure to lodge written submission, the applicant shall be deemed to waive her right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a Bangladeshi national. She came to Hong Kong on 16 December 2016 and was permitted to stay as a domestic helper until 30 October 2018. Her employment contract was terminated prematurely.  She did not leave and overstayed.  She was arrested by police on 18 January 2017 and was then referred to the Immigration Department for investigation.  On 8 January 2017, she lodged her non-refoulement claim by way of written representation on the basis that if she were to return to Bangladesh, she would be harmed or killed by a creditor whom she was unable to repay.  She also claimed that she would be arrested by the Bangladeshi police because there was a false drug trafficking case against her. 

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 2221.  We shall not repeat the same here.

5.  By the Notice of Decision dated 14 February 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 10 September 2018, the Board dismissed the appeal on 12 November 2018.  The Board found that the applicant gave confused and inconsistent evidence in relation to the police search at her house and where she stayed after the police search, and her said evidence were in gross contradictions with what she mentioned to the Director.  The Board rejected her claim that she owned a car in Bangladesh which was impounded by the Bangladeshi police in relation to drugs trafficking or any other criminal matter, or that she was ever subject to police investigation or charge or wanted by the police.  The Board did not find any real risk of harm should the applicant return to her home country and her claims were not made out on any of the applicable grounds.

The Judge’s decision

7.  On 19 November 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board. In her supporting affirmation and the attachment to Form 86, she set out the background of her case and cited some provisions of the Basic Law, articles of United Nations Convention against Torture.  She further advanced the following grounds for her intended challenge:

(1)  The hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case.

(2)  The contents of the hearing bundle were in English and she was unable to obtain interpreter service and she was confused at the appeal hearing.

(3)  The Adjudicator had misdirected himself that the applicant had to experience torture in the past in order to establish and substantiate for a real risk of torture.

(4)  The Adjudicator had applied a wrong standard of proof.

(5)  The Adjudicator did not conduct sufficient and updated research in the Country of Origin Information (“COI”).

(6)  The Adjudicator had relied upon hearsay information and outdated material in relation to COI.

(7)  The Adjudicator had cherry-picked and give undue weight on the irrelevant material.

(8)  The Adjudicator neglected materials that were favourable to her case.  In particular, the Adjudicator had not considered USHR 2010, USHR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favourable to her case.

(9)  The Adjudicator failed to fulfill his obligation to obtain the requisite documents for his adjudication.

(10)  The Adjudicator was wrong in finding that there was reasonable state protection in her country.

(11)  The Adjudicator failed to call for psychological and psychiatric reports on the applicant.

(12)  BOR 2 risk was assessed without screening by the Immigration officer.

8.  The Judge heard the application 27 March 2019 and by the CALL-1 Form of 19 September 2019, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [12] – [19] of the CALL-1 Form:

“DISCUSSION

12.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. Her lawyer had explained the Director’s Decision to her. She also reads English and she understands the Board’s Decision.

13.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. I had put the Board’s findings above to her for her comment. She had no comments.

14.  Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

15.  Ground (3) does not sustain as she does not have the absolute right of legal representation throughout different stages of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

16.  Grounds (4) to (11) are her opinion without any evidence in support of them.

17.  Grounds (2) fails too as this issue was not raised before the hearing.

18.  Ground (13) is irrelevant because BOR 2 risk was assessed together with the other risks in the same screening.

19.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The Appeal

9.  In the Notice of Appeal filed on 23 September 2019 together with her supporting affirmation, the applicant advanced the following grounds of appeal:

(1)  The Judge was wrong in law in holding that there was no state acquiescence or involvement. 

(2)  The Judge had failed to provide detail reason in support of his decision.

(3)  The Judge had ignored COI in his assessment of his case.

Discussion

10.  We fail to see the basis of the complaint in ground 1.  The applicant’s case was rejected by the Board on the basis that her evidence was contradictory and unreliable and that her claim was fabricated to create a case for non-refoulement protection.  State acquiescence or involvement was therefore not in issue and had not been considered by the Board.  State acquiescence or involvement was also not raised in Form 86 and the Judge had not made any findings in relation to this issue.

11.  Ground 2 is a general and bare assertion.  As set out in paragraph 6 of this judgment, the Judge had given adequate reasons for his rejection of the grounds of appeal at [12] to [19] of the CALL-1 Form.  The applicant’s complaint simply cannot stand. 

12.  Ground 3 is a general and bare allegation.  Assessment of evidence, COI materials, risk of harm etc. are primarily within the province of the Director and the Board and the Court will only intervene when there are valid public law grounds.  We are satisfied that the Judge had reviewed the Director and the Board’s decisions with anxious scrutiny and vigorous examination and we find nothing amiss in the Judge’s decision.  We agree with the Judge that leave to apply for judicial review should be refused.   

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.