AKTHER MOSAMMAT FATEMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 441/2019

[2020] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 441 OF 2019

(ON APPEAL FROM HCAL NO 2619 OF 2018)

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J U D G M E N T

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

Introduction

1.1.  This is an appeal by Ms Akther Mosammat Fatema (“the appellant”) from an order of DHCJ K.W. Lung (“the Judge”) given on 16 September 2019 dismissing her application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as “CALL-1” (“the Judge’s Decision”)[1].    

1.2.  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decisions made by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“TCAB”) rejecting the appellant’s claim that she should not be removed from Hong Kong and returned to her country (“claim for non-refoulement”).  The TCAB’s Decision (defined in [7.2] below) was an appeal against the decision of the Director who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh now aged 30.  She is single.  The appellant was given permission to enter Hong Kong in 2016 as a domestic helper.  Her last employment contract in Hong Kong was prematurely terminated on 20 October 2016. She overstayed in Hong Kong and was arrested by the police on 15 July 2017. She submitted her non-refoulement claim form dated 20 February 2018. 

The appellant’s allegations

3.  The appellant’s allegations in support of her claim have been set out in detail in the TCAB’s Decision (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what she alleged was that:

-  She joined the political party Jamayat-Islamic/Jamaat-e-Islami (“JI”) as a member in around 2011.  She attended party meetings and rallies and persuaded others to support the JI.  In May 2013, she attended a congregation held in Dhaka together with many party members protesting against the government. On the night of 5 May 2013, the government used arms and weapons to disperse the assembly causing deaths and injuries.  She did not have any serious injury and managed to flee to Comilla for about one week.  Subsequently, she returned to Dhaka as her family had moved to Dhaka. 

-  In around late 2013, the appellant learnt from her father that the police and the Awami League (“AL”) members would arrest all the students on the list of the government for attending the congregation.  In early 2014, the police and the AL members came to her house in Dhaka to arrest her but she was not at home.  They told her father that the AL members might kill her.  Her father told her not to return home.  She went to stay with her friend in Bogura for 2 to 3 months. 

-  Her father told her to leave Bangladesh as the police and the AL members kept on searching for her at her family home.  On 14 December 2014, she left her country and arrived in Hong Kong on 15 December 2014 to work as a domestic helper.  Her employment contract was prematurely terminated.  She returned to Bangladesh on 28 January 2016 as she thought the problem was resolved.  Upon her arrival, her father told her that the police and the AL members still continued to search for her.  She then went to stay with her grandparents in Patuakhali for around 10 months. 

-  On 14 October 2016, the appellant came back to Hong Kong and started her second contract as domestic helper but that contract only lasted for about a week.  Her father told her not to return home as the situation had worsened. She claimed she has lost contact with her family ever since and overstayed in Hong Kong. 

-  The appellant thought that there was no state protection and there would not be a fair trial for her in Bangladesh.  In addition, she was unable to relocate to other places in Bangladesh as she had no financial resources and with AL being the ruling party, they could easily locate her if she returned to her country.

4.  The appellant’s claim was examined to see if she was at risk under any of the following risks if she returned to the Bangladesh: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.  What is often referred to as “BOR 3 risk” (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.  What is often referred to as “BOR 2 risk” (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance Cap.383) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare her claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 20 March 2018 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1.  The appellant appealed to the TCAB which held a hearing at which the appellant was present.  The TCAB raised various questions in relation to the appellant’s case ([48]-[49]).  The appellant testified at the hearing.  

7.2.  The TCAB reviewed the evidence of the appellant in detail and dismissed the appeal by its decision given on 12 November 2018 (“the TCAB’s Decision”).  The TCAB found that there were a number of discrepancies in her evidence and determined that she was not a witness of truth ([85]-[86]).  Essentially, the TCAB did not accept that the appellant was a JI member as her knowledge about the party was very limited, and she had not attended the congregation held in Dhaka in 2013 as her evidence of when it occurred and what had happened differed from objective sources.  The TCAB also did not accept the appellant’s alleged fear of harm upon her return to the Bangladesh or that the police and the AL members had attended her family home to search for her or that they had any interest in her ([87]-[89]).       

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the decisions of the Director and the TCAB. The appellant set out her grounds in her affirmation in support which was summarized by the Judge in the Judge’s Decision as follows ([12]):

“(1)  procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  procedural impropriety/irrationality: failure to [give] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of BOR 3 risk;

(3)  error/misdirection in law: failure to consider psychological strain and threats to her personally;

(4)  the Board and the Director failed to consider the actual situation, the general election this year and the AL government would be against opposition and they killed three leaders and members of JI party; and

(5)  no sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.”

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge with assistance from an interpreter.  As mentioned earlier, the Judge refused leave for the reasons set out in [13] - [20] of the Form CALL-1 ([2019] HKCFI 2222):

“The Director’s Decision

13.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her and her friend had explained the Board’s Decision to her.

16.  I put the Board’s findings to her and asked her if she had any comments. She simply said that she still had problems in Bangladesh.

17.  It is obvious that the Board rejected her evidence in support of her claim.

18.  As far as the facts are concerned, the Board’s Decision is final as held by the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, at paragraph 42.

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

Conclusion

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 23 September 2019, the appellant appealed the Judge’s order to this court.  She stated her grounds as follows:

“1. In my judgement the assessor did not consider properly my fear, that I would be face a real risk upon refoulement. In the judgement page 2, here the Honourable Judge state that my statement was unfaithful, was not match as my claim.

2. Failure to consider my fear under BOR 3 risk.

3. Failure to consider the country of origin condition.” (sic)

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and we will not repeat them here.

11.3.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  The appellant filed her skeleton submissions on 28 October 2019 submitting that: (1) the TCAB and the Director failed to make sufficient inquiries into the country of origin conditions of her claim and did not adopt a high standard of fairness; (2) the TCAB and the Director failed to take into account the relevant matters which included the real risk from her enemies and as a result, her life would be in danger and she suffered from severe mental distress; and (3) she was subject to the persecution risk upon refoulement as her enemies continued to search for her whereabouts, and the TCAB and the Director failed to assess her fear.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1.  The appellant’s grounds of appeal and arguments are essentially the same as her grounds of judicial review which had been canvassed before the Judge.  The grounds are bare assertions and she is regurgitating her factual allegations which had been rejected by the TCAB on legitimate grounds. The Judge was entitled to rely on the risk assessment made by the TCAB, which is the fact finding tribunal for the appellant’s claim.  None of the appellant’s grounds of appeal are meritorious.  She has failed to show that her claim has a reasonable prospect of success.  

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.