RE AKTER SALMA

CACV 313/2019

[2019] HKCA 1111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2019

(ON APPEAL FROM HCAL 332 OF 2018)

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REASONS FOR JUDGMENT

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) as stated in Form CALL-1 dated 25 June 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 1607, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 6 July 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) respectively dated 29 October 2015 (“the Director’s First Decision”) and 24 October 2016 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

2.  At the end of the hearing, we dismissed the appeal and indicated that we would hand down our reasons.  This is what we do now.

Background

3.  The applicant is a national of Bangladesh.  She entered Hong Kong on 11 February 2014 as a domestic helper but her contract was terminated prematurely on 12 April 2014.  She overstayed and was arrested on 24 May 2014.  She lodged a non-refoulement claim on 31 May 2014.

4.  The details of the applicant’s claim and her personal background were set out in paragraphs 9 - 10 of the Director’s First Decision, and paragraphs 2 - 20 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if she were to return to Bangladesh, she would be harmed or killed by her husband Molla and members of the Awami League (“AL”) because she was actively affiliated with the Bangladesh Nationalist Party (“BNP”).  The applicant claimed that she joined BNP in 2004 and had been actively participating the party’s gatherings.  She said that some of the AL members threatened her and demanded her to quit the BNP.  In 2006, she entered into an arranged marriage with Molla, who was a member of AL.  Upon her refusal to join the AL, Molla started to mistreat her.  From 2013, Molla had physically abused her by detaining her at home and depriving her of food and water.  She often sustained serious injuries after the assaults.  She escaped to her mother’s house in May 2013 and eventually came to Hong Kong.

The Director’s Decisions and the Board’s Decision

6.  By the Director’s First Decision which covered the BOR 3 risk^[1], the persecution risk^[2], the torture risk^[3] and the Director’s Second Decision which assessed the BOR 2 risk^[4], the Director decided against the applicant’s claim on all those applicable grounds.

7.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 14 November 2016, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board refused to accept that the applicant was persecuted for her political affiliation.  It found that the applicant was at most a victim of domestic violence (paragraph 51 of the Board’s Decision).  The Board was also not convinced by the applicant’s version of events.  Further, the Board held that state protection and internal relocation were available to the applicant (paragraphs 68 - 74 of the Board’s Decision).

The Deputy Judge’s Decision

9.  The applicant in fact first applied for leave to apply for judicial review on 18 July 2017 under HCAL 421/2017 to challenge the Director’s Decisions and the Board’s Decision.  This leave application was dismissed by Deputy High Court Judge Woodcock (“DHCJ Woodcock”) by way of her decision dated 23 February 2018 [2018] HKCFI 292.

10.  The applicant did not appeal DHCJ Woodcock’s decision.  Instead, soon thereafter on 2 March 2018, she filed these proceeding to reapply again for leave to apply for judicial review to challenge the same Director’s Decisions and the Board’s Decision.   The grounds in support of this intended judicial review were summarized by the Deputy Judge at paragraphs 14 ‑ 19 of the Deputy Judge’s Decision:

“14.     The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

15.     The Applicant accused the Adjudicator misdirected herself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (‘COI’); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

16.     The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

17.     The Applicant said the appeal bundle was only given to her a few days before the Board hearing.

18.     The Applicant also complained the Director had not screened her claim with respect to BOR2 risk.

19.     Apart from the extra ground that the Adjudicator misdirected herself in law, the other grounds of judicial review for the 2ndJudicial Review were the same as those submitted in the 1^st Judicial Review.”

11.  The Deputy Judge heard the applicant’s leave application on 13 August 2018.  After the hearing, the Deputy Judge dismissed it on the basis that it was an abuse of process by the applicant to apply for the second time to challenge the same decisions without any reasonable justification. He set out his detailed reasons in paragraphs 23 ‑ 32 of the Deputy Judge’s Decision:

“23.     Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

24.     A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 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.’

25.     The Applicant's claim had been dealt with by the Director and the Adjudicator. She applied for leave for judicial review for the first time on 18 July 2017. The case number was HCAL421/2017. Deputy High Court Judge Woodcock heard the Applicant on 9 November 2017.

26.     The Judge gave her decision on 23 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, she on 2 March 2018 filed the 2nd Judicial Review (HCAL332/2018).

27.     The Applicant was asked why she repeated applying for leave for judicial review. She said there were still problems in her country and it was dangerous for her to go back. The Applicant complained the Judge had not considered her case well.

28.     If the Applicant was not satisfied with the Judge’s decision, she could have appealed within the prescribed time. She did not. Rather she applied for leave for judicial review again.

29.     The Applicant raised certain complaints in the 2^nd Judicial Review. Most of the complaints had been raised in the 1stJudicial Review. There was only one extra ground. The Applicant now complained the Adjudicator misdirected herself in law. However, that allegation could certainly have been raised in her previous application.

30.     The Applicant must show good reason to justify a renewed application for leave for judicial review. She could not simply ask the court to consider her case again on such grounds already submitted or which could have been submitted in her previous application.

31.     The Applicant failed to justify her repeated application. Her unjustified repetition must be regarded as an abuse of process. Her case had been duly considered by the Judge in the 1^st Judicial Review. I should not reconsider it.

Conclusion

32.     The Applicant fails to justify her repeated application for leave for judicial review. Her application is therefore dismissed.”

Grounds of appeal

12.  The applicant filed the Notice of Appeal dated 5 July 2019 to appeal against the Deputy Judge’s Decision.  She advanced her grounds of appeal as follows:

“Unfortunately Honorable Judge refused my judicial review. But I am not satisfy I wish and hope court of appeal will give me a good result.” [sic]

13.  On 22 July 2019, the applicant filed a Supplemental Notice of Appeal, in which she argued that the Deputy Judge did not provide any reasons in the Form CALL-1 and that she lacked legal and language assistance.

14.  On 9 September 2019, the applicant filed her written submission pursuant to the directions of Master Au-Yeung on 22 July 2019. In the written submission, she merely repeated that she did not have legal assistance and that the screening system was wrong.  Apart from these bare assertions, she did not identify any errors in the Deputy Judge’s Decision.

Discussion

15.  At this hearing, the applicant confirmed that she relied on the submissions and matters already set out in the documents she had submitted to the court and had nothing further to add.

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

17.  First, 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 the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating 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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  Thus, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

20.  In light of the above, it is thus incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge.

21.  Bearing these principles in mind, it is clear that the grounds relied on by the applicant in the Notice of Appeal, the Supplemental Notice of Appeal and the written submission are wholly without merits and are not viable appeal grounds. We will explain why.

22.  Insofar as her complaint about the lack of reasons in the Deputy Judge’s Decision is concerned, this is clearly wrong.  As shown above, the Deputy Judge had provided detailed reasons to explain why the applicant’s leave application was an abuse of process and thus should be dismissed.  In our view, the Deputy Judge was clearly correct in his conclusion and reasons.  As explained by the Deputy Judge, after her first leave application was refused by DHCJ Woodcock, the applicant should have appealed against that decision if she was dissatisfied with it.  Instead of pursuing that, and without any justifiable explanation, she reapplied for leave to challenge the same decisions on the intended judicial review grounds that she had already relied on or ought reasonably to have relied on in her first application before DHCJ Woodcock.  This is a classic case of abuse of process.  This ground is therefore devoid of merit and should be rejected.

23.  Insofar as her complaints about the lack of legal and language assistance are concerned, these related to complaints made against the Director’s Decisions and the Board’s Decision.  They had been considered and rejected by DHCJ Woodcock in her refusal of the applicant’s first application for leave to apply for judicial review.  The applicant has not appealed against that refusal.   Further, given that the Deputy Judge dismissed the applicant’s present repeated leave application on the basis of abuse of process, it was therefore unnecessary for the Deputy Judge to deal with these purported grounds in the Deputy Judge Decision again.   There is no error committed by Deputy Judge in this respect. This is not a viable ground of appeal.

24.  Finally, we also note that the applicant was in any event clearly out of time when she reapplied in March 2018 for leave to challenge the Director’s Decisions and the Board’s Decision (which was made in July 2017) by way of the present leave application. There were however obviously no good reasons in the present case to justify extending time for her to re-apply for leave as she already had it determined on merits under her first application.  This appeal should therefore also be refused on this basis.

Disposition

25.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismissed the appeal.