RE AKTER RUKSANA

CACV 329/2020

[2021] HKCA 483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 329 OF 2020

(ON APPEAL FROM HCAL 1475 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 28 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1556.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 9 July 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 March 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 7 August 2020.  She also filed her skeleton submissions on 28 January 2021 as directed by the Registrar of Civil Appeals.  By a letter dated 7 August 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.      Background

4.  The applicant is a national of Bangladesh.  She arrived Hong Kong as a domestic helper on 29 November 2013.  After her contract was terminated prematurely, she overstayed and was arrested by the police on 5 June 2017.  She lodged her non-refoulement claim on 13 November 2017.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 3 - 19 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by members of Awami League (“AL”) who had raped her.  She also claimed that she would not be accepted by her family because of the rape incident.  The applicant claimed to be raped in 2009 by two AL members.  Due to the influential status of AL, the applicant and her family dared not to report to the police initially but their subsequent report to the police was also of no avail.  The applicant had to relocate to another village as the news of her rape had spread quickly in her home village, brining shame to her family.  In 2013, after her marriage arrangement failed, one of her uncles told her to marry one of her rapists.  Whilst she disagreed, she met him and spent a few hours with him in a hotel.  Subsequently, she found out she was pregnant and later had an abortion because the man left her.  Eventually, she fled to Hong Kong for protection.

B.      The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 26 June 2018, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board reminded itself of the applicable legal principles before reaching the conclusion that the applicant was not a credible witness.  The Board found that there were clear discrepancies in the applicant’s evidence which rendered her evidence implausible and unreliable (paragraphs 46 - 50 of the Board’s Decision).  In any event, state protection and internal relocation were both available to the applicant (paragraphs 64 ‑ 70 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.      The Deputy Judge’s Decision

10.  The applicant filed a Form 86 with the supporting affirmation on 26 July 2018 (dated 25 July 2018) seeking leave to apply for judicial review against the Board’s Decision.  Her grounds of review were summarized by the Deputy Judge at [12] of the Deputy Judge’s Decision:

“12. On 26 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) procedural unfairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) procedural unfairness in that the adjudicator acted in a procedural unfair manner in dealing with the Applicant’s appeal;

(3) procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the Public Law sense or the result of procedural errors or unfairness;

(4) procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) procedural unfairness in providing the Applicant with the hearing bundle only 6 days before her appeal hearing before the Board with the majority of the documents were in English thus given the Applicant insufficient time to prepare for the appeal hearing due to her limited English and that she was no longer legally represented or to find an affordable interpreter to assist in her appeal before the Board; and

(6) that the Board significantly relied on source of news not officially recognized or were simply hearsay or outdated resulted in groundless speculations that it would be safe for her to return to her home country.”

11.  After hearing the applicant and considering the documents, the Deputy Judge refused to grant her leave to apply for judicial review with reasons set out at [13] - [19] of the Deputy Judge’s Decision:

“13. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way was the Board unlawfully fettering its discretion or act in a procedurally unfair manner, or how did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

15. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

16. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17. The fact is that 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 simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. 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.

19. 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.”

D.      Grounds for appeal

12.  The applicant advanced the following grounds in her Notice of Appeal:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.” [sic]

13.  In her skeleton submissions, she quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  However, she did not explain and elaborate how the aforesaid cases were related to or would assist her case.

14.  At the hearing, other than relying on what were stated in the Notice of Appeal and her written submissions, the applicant said her case was dealt with very quickly at the hearing before the Board.  She also said her father had passed away and her mother had also gone missing in Bangladesh.  Since she now had a baby boy and if she and her child were returned to Bangladesh, there would be no one looking after the boy.  She therefore said she did not want to and could not return to her home country.  She confirmed that the boy was born in Hong Kong with her boyfriend after her appeal was dismissed by the Board.

E.      Discussion

15.  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.  They can be summarized as follows.

16.  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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it 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.

17.  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.

18.  Third, 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).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we are of the view that this appeal has no merit.

21.  First, the grounds and arguments advanced by the applicant in the Notice of Appeal and the skeleton submissions are all directed at the Director’s and Board’s Decisions.  They do not show in any respect any error in the Deputy Judge’s Decision.  They are therefore not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

22.  Second and in any event, the aforesaid grounds were all advanced but rejected by the Deputy Judge with detailed reasons provided in the Deputy Judge’s Decision.  The applicant failed to identify why the Deputy Judge was wrong in so holding.  We have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

23.  Finally, as to her submission concerning the baby boy, since he was only born after the Board’s Decision, this new factual concern was not advanced before the Director or the Board.  As this appeal concerns only with the Judge’s refusal to grant leave to judicially review the Board’s Decision, this court should and would not take this in account in considering the merits of this appeal.

F.       Disposition

24.  For all these reasons, we dismiss the appeal.