RE KAMRUNNAHAR MST

CACV 307/2019

[2019] HKCA 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 307 OF 2019

(On appeal from HCAL 1722 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 KAMRUNNAHAR Mst, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 20 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 10 August 2018 (“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 24 November 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 31, is a fear of being harmed or even killed by her abusive husband[1] (“H”) who is also a leader of the ruling party, the Awami League[2] (“AL”). Such alleged fear is said to arise out of the following circumstances:

(1)  In around July 2010, which was 4 months into the applicant and H’s marriage, H demanded the applicant’s father to pay him a dowry of 50,000 BGD Taka. The applicant’s father could not afford to pay such an amount right away. This infuriated H.

(2)  H also found the applicant unacceptable because her father belongs to an opposition party, the Bangladesh Nationalist Party.

(3)  H started to torture the applicant. He would swear at her, slap her around, grab her hair and beat her up with bamboo sticks, especially when he was drunk. He even kicked her in the abdomen when she was pregnant in around October 2010.  H’s family forbade the applicant to approach the police or her family for help. The applicant nevertheless reported H’s abuse to the police. However, instead of helping her, the police asked the applicant for money.

(4)  In around late 2011, the applicant sought refuge at her parents’ house with her newborn daughter.

(5)  A few days later, H came and took away the baby. The applicant’s father had to pay 5,000 BGD Taka to enlist the police’s assistance in getting the baby back. 

(6)  The applicant and her daughter only returned home with H after H had promised to be good to her in front of the area chairman and elder members of her family.

(7)  Then, in around late 2011 or early 2012, H and his family assaulted the applicant with iron rods inflicting bruises all over her body because her parents were unable to meet their monetary demands. The only medical treatment that the applicant required and received as a result of such assault was the application of some ointments to the bruises.

(8)  With the assistance of the village head, the applicant’s father was able to save the applicant and her daughter from H’s house. Before that, he had reported the assault to the police but did not receive any help as he did not have any money to bribe them. 

(9)  Thereafter, from 2012 to 2013, the applicant worked as a domestic helper in her home area and stayed with her daughter at her parents’ home. 

(10)  The applicant wanted a divorce but H refused to sign the papers. She fled to Dhaka in 2014 to avoid H. She knew while she was in Dhaka, H had gone to her parents’ home to threaten to kill her if she ever returned home.

(11)  In Dhaka, the applicant learnt that people in Hong Kong were recruiting domestic helpers from Bangladesh. She spent 5 months in an employment agency in Dhaka until she was granted an employment visa to come to Hong Kong.

(12)  Since arriving in Hong Kong, the applicant has maintained contact with her parents and daughter from whom she learnt that H still went to her parents’ home around once a week to try to obtain information of her whereabouts. H tried to hurt her parents but was stopped by her uncles who are in the same village.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant arrived in Hong Kong on 23 July 2014, leaving her daughter in the care of her parents in Bangladesh. After her employment contract as a foreign domestic helper was prematurely terminated on 23 August 2014, she did not leave within 14 days as required by the law and overstayed from 7 September 2014. She surrendered to the Immigration Department on 5 November 2015. She raised the NRF Claim by way of written representation dated 29 November 2016. Her non-refoulement claim form was submitted on 29 September 2017.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representatives conducted a screening interview on 13 November 2017 with the applicant who then had legal representation from the Duty Lawyer Service (“DLS”).

5.  The Director’s Decision covered all 4 applicable grounds for non-refoulement protection: torture risk[3], persecution risk[4], “BOR 2” risk[5] and “BOR 3” risk[6]. The Director found the NRF Claim to be unsubstantiated.

(1)  First, the level of risk of harm was likely to be low.

(2)  There is no indication that H intended to harm or kill the applicant as she claimed.

(3)  Having regard to the nature and intensity of the harm the applicant claimed to have suffered and the relatively minor injuries inflicted and medical treatment required, the past ill-treatment did not attain a minimum level of severity to warrant non-refoulement protection. 

(4)  The risk of harm from H was apparently localised to their home district as H was unable to find the applicant after she moved to Dhaka. H’s influential power as an alleged AL leader is not supported by objective evidence. The applicant’s fear that he could easily locate her anywhere in Bangladesh is far-fetched.

(5)  Second, the availability of state protection would further lower or even negate the level of risk (if any).

(6)  The inaction of the few corrupted or irresponsible police officers encountered by the applicant and her father did not represent the Bangladesh police or state government as a whole. There is no indication that the police misbehaviour described by the applicant was condoned by the state government. And the applicant never complained to any higher authorities against such misconduct.

(7)  There is objective country of origin information (COI) showing that reforms have been and are ongoing in Bangladesh; that the Bangladeshi government has put measures in place to monitor police conduct; and that there are alternative avenues to seek justice in Bangladesh. Reasonable state protection would be available to the applicant if resorted to upon her return to Bangladesh.

(8)  Third, internal relocation alternatives are available to the applicant in a big and populous country like Bangladesh. As an able-bodied adult female with working experience as a housemaid in Bangladesh and as a domestic helper in Hong Kong, the applicant can relocate (e.g. to Dhaka where she had stayed for an extended period before coming to Hong Kong, or Chittagong, both populous cities).

Appeal to Board and Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 4 December 2017.

7.  After an oral rehearing of the NRF Claim on 10 May 2018, 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 10 August 2018.

8.  In gist, the Board observed “significant inconsistencies” between the accounts she gave to the Director and the Board about past events (such as when she married H, left him, stayed with her parents and lived in Dhaka and whether H had found out where she lived in Dhaka).  It was also unable to make any detailed findings of fact due to the “inconsistent, vague and confused evidence” of the applicant. However, the Board gave the applicant the benefit of the doubt and accepted that H and his family had subjected her to physical and psychological abuse on a number of occasions while she lived with them.

9.  Nevertheless, such past abuse by H and his family is insufficient to ground a belief that the applicant would face a real or genuine risk of being subjected to any of the proscribed harms upon her return to Bangladesh.  

10.  Even if the applicant had been able to show that she would face any such risk, the available COI indicates the existence of a functioning system of law and order in Bangladesh, including a reasonably effective and impartial police force and justice system that investigates and prosecutes persons who break the law. There have also been significant changes in recent years in the attitude and response by law enforcement agencies in Bangladesh towards domestic violence, with an increased awareness on the part of, and more resources being made available to, police officers and non-governmental agencies to assist vulnerable women.

11.  Further, such risk (if any) is localised. As an able-bodied adult female with both domestic and overseas work experience, the applicant can relocate to a large town or city away from H’s or her parents’ home areas without undue or unreasonable hardship.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1722/2018 on 23 August 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 20 June 2019, [2019] HKCFI 1564 (“Form CALL-1”), by the Form 86 and her affirmation filed on the same date, the applicant raised the following grounds for judicial review:

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

(2)  that the hearing bundle was in English and she was unable to obtain interpretation service;

(3)  that she was confused at the appeal hearing; and

(4)  that the Board had relied upon non-officially recognised or hearsay COI as well as outdated cases.

13.  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]-[17] of the Form CALL-1:

“12. The applicant appeared before me. She confirmed that she was able to speak freely before the Immigration officer and the Adjudicator was also fair to her. The Director’s Decision was explained to her by the duty lawyer, and her friend had explained the hearing bundle to her before the appeal hearing.

13. I put the Board’s findings above to her for her comments. She said that she had no money to pay the police officers or for relocation.

14. Grounds (1) (2) and (3) fail as they are inconsistent with what she said before this Court.

15. Ground (4) does not sustain because it is only her opinion without any evidence in support of it.

16. The Board had found the facts and applied the appropriate legal principles and the relevant Conventions to her case. There is nothing amiss in the analysis as it is clearly a family matter which should be handled by the applicant’s country. The Country of Origin Information clearly states that Bangladesh has available remedies to redress her problems.

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

14.  In addition to the said proposed grounds for judicial review dealt with by the Judge, we note that the applicant had also made the following complaints in the Form 86:

(1)  that the Board had unlawfully fettered its discretion by refusing her appeal “on the grounds that they did not satisfy the requirement”;

(2)  that the Board acted in a procedurally unfair manner in dealing with her appeal;

(3)  that the Board’s refusal of her appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant.

However, we do not see how any of these generalised and unparticularised bare criticisms against the Board would have advanced the applicant’s appeal against the Director’s Decision.

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed herein on 4 July 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“THE HONOURABLE JUSTICE OF THE HIGH COURT ORDER IS NOT CORRECT. I HOPE I WILL GOT PERFECT JUSTICE FROM THE COURT OF APPEAL.”

16.  In her written submission dated 23 September 2019, the applicant stated that:

(1)  She cannot return to Bangladesh because she has a “big political problem” there.

(2)  The Director and the Board made many errors of law and procedure.

(3)  The Board did not provide her with any lawyer and she could not afford to engage one herself.

(4)  The Board was not neutral but was determined to act against her and treated her like its enemy.

(5)  The Board asked the applicant questions but did not give her sufficient chance or time to answer them properly.

(6)  The lawyer who acted for her before the Director did not represent her properly as she did not get to meet him until her screening interview.

17.  The applicant appeared in person at the hearing of the appeal on 21 October 2019.  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

18.  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

19.  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 interferes 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

20.  The applicant has simply failed to state in the notice of appeal or the written submission in what ways (if any) the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. 

21.  First, neither the bare assertion that the Judge’s Decision was incorrect (without specifying how) nor the hope for a better outcome at the Court of Appeal, as expressed in the notice of appeal, is or could be a ground of appeal, properly so called.

22.  Second, the statements in the written submission target the Board and/or the Director. As explained in [19] 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. 

23.  In any event:

(1)  The applicant’s latest statement that she cannot return to Bangladesh because of her “political” problem there is inconsistent with the NRF Claim which is premised upon a fear of violence from her estranged husband.

(2)  A claim that the tribunal below erred in law and procedure, without specifying the error, is not a proper ground of appeal.

(3)  The complaint of lack of legal representation before the Board was not raised as a proposed ground for judicial review before the Judge. Anyway, this Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 gave a non-refoulement claimant an absolute right to free legal representation at all stages under the Unified Screening Mechanism: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re: Ahmed Syed Rafiq [2018] HKCA 178. In this case, the applicant did already have the benefit of legal representation from the DLS in presenting her case to the Director. She has not pointed out in what ways she was prejudiced before the Board due to the lack of legal representation.

(4)  The applicant’s criticisms of the Board’s attitude towards her and the way in which the Board conducted the rehearing of the NRF Claim, both of which are fact-sensitive, were likewise not raised before, and therefore not investigated by, the Judge. We see no reason why they should be entertained at the appellate stage before the Court of Appeal, particularly in view of the fact that the applicant sees fit to mention them for the first time only in her written submission before us and without giving any supporting particulars.

(5)  As for the alleged inadequacy of the legal representation provided by the lawyer assigned by the DLS, it has since been overtaken by the appeal before the Board, which was in the nature of a complete rehearing of the NRF Claim.

Disposition

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