AKTER AMENA v. TORTURE CLAIMS APPEAL BOARD

CAMP 21/2024, [2024] HKCA 866

On Appeal From [2023] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 21 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 884 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  dated 17 October 2023[1] dismissing the application for leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 25 February 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 9 January 2018 rejecting his non-refoulement claim.

2.  On 25 January 2024, the Judge refused to extend time for the applicant to appeal against his decision of 17 October 2023.

Background

3.  The applicant is a national of Bangladesh born in 1983.  She first entered Hong Kong in 2014 to work as a foreign domestic helper.  The applicant last entered Hong Kong on 21 March 2016 and was permitted to remain for employment as a domestic helper until 21 March 2018 or two weeks after termination of contract, whichever was earlier.  Her employment contract was prematurely terminated on 3 April 2016. The applicant overstayed and surrendered to the Immigration Department on 26 April 2016.  On 11 October 2016, she lodged a non-refoulement claim on the basis that she would be harmed or killed by her ex-husband and his new wife due to their private conflicts, if she was refouled to Bangladesh.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 9 January 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 22 November 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 25 February 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [10] of the Form CALL-1:

“  10.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband or his new wife that caused her to overstay in Hong Kong and to seek protection, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

The Judge’s decisions in the court below

6.  On 1 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  From the Form 86 and her supporting affirmation, the applicant’s grounds for judicial review have been summarized at [11] of CALL-1 as follows:

“ (1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;.

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure;

   (10)  Procedural unfairness in that the hearing bundle for her appeal before the Board was provided to her just a few days before her appeal hearing with the majority of the documents in English thereby giving her insufficient time or opportunity to prepare for her appeal due to her limited skill in English and lack of fund to afford an interpreter to assist her.”

7.  By letter dated 28 September 2023, the applicant wrote to the court requesting to withdraw her application as she wanted to go back to Bangladesh as soon as possible.  The Judge considered the application on the basis of the documents alone as the scheduled oral hearing was vacated in light of her letter dated 28 September 2023.  On 17 October 2023, the Judge issued his decision to dismiss her application for leave to apply for judicial review.  The reasons were set out in [12] to [19] of the Form CALL-1 as follows:

“ 12. These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13. The only 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 documents in English of which she was unable to read or understand thereby giving her insufficient time to prepare for her appeal before the Board.

14. Even if it is true that the hearing bundle indeed came to her late as alleged, and she did not provide any proof such as the covering letter to show the date of the delivery of the hearing bundle to her, I note that most of those documents such as her NCF or her record of interview had all been provided to her before when she was then represented by legal representation, and that at the hearing of her appeal before the Board she was assisted by an interpreter and never raised any issue over the hearing bundle or requested for any adjournment for more time to prepare for her appeal. As such I do not find this ground reasonably arguable for her intended challenge either.

15. 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 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.

16. In the Applicant’s case, 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 her 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.

17. 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.

18. Moreover, the Applicant recently on 28 September 2023 wrote to request to withdraw her application as she wants to go back to Bangladesh as soon as possible.

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 in view of her latest confirmation of her wish to return to her home country as soon as possible, I accordingly dismiss her leave application, and vacate the scheduled hearing for her application.”

8.  More than 2 weeks after the expiry of the 14-day time limit for appeal against the judge’s order prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), the applicant filed a summons on 16 November 2023 together with a supporting affirmation to apply for extension of time for appealing against the order dated 17 October 2023 and for leave to advance a new sole ground of appeal.  In her affirmation, the applicant explained that she withdrew her application due to instruction from an immigration officer and due to her eye condition.  At the oral hearing held on 11 January 2024, the applicant explained to the Judge that her delay was due to her eye problem.  On 25 January 2024, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed on 31 January 2024, the applicant made an application for extension of time to appeal as she did not receive the Judge’s decisions dated 17 October 2023 and 25 January 2024.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 17 October 2023 dismissing the application for leave for judicial review. 

10.  In the applicant’s supporting affirmation, she stated that she failed to appeal as she did not receive the lower court decisions dated 17 October 2023 and 25 January 2024 without any further elaboration.

11.  In her written submissions, the applicant stated that she did not receive the letter from the court, that she did not know the law, that the Director did not believe her, that the Board made many errors, and that the lower court did not consider her points and did not fix any oral hearing.  The applicant did not however provide any elaboration for these assertions.

12.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for about 2 weeks when she filed her summons on 16 November 2023.  In her supporting affirmation, the applicant stated that the delay was due to her eye problem and that she was later able to obtain contact lenses to proceed with her intended appeal.  As the applicant’s delay was not minor, the court will not extend time unless there are real prospects of success in the intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed her evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim because it did not find her to be a credible witness as there were “glaring inconsistencies and contradictions” in all aspects of her story.  Even if her evidence was accepted, the Board further considered that the applicant’s dispute was of a private domestic nature, that there was no risk of persecution, that there was no evidence to show any risk of serious harm upon refoulement, that the past incidents did not reach the requisite level of harm, and that internal relocation would be a reasonable and viable option  for the applicant.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish a reasonably arguable case on any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The Judge considered that the court record showed that decision had been duly sent to the applicant’s last reported address without being returned through the undelivered post.  Also, the Judge considered that the applicant’s alleged eye problem, without any corroborating or supporting documentary evidence, was not a valid justification for her delay.  Further, the Judge had duly considered the merits of her intended appeal before dismissing her application for extension of time, in addition to considering the applicant’s letter of withdrawal of her application for leave for judicial review. Moreover, the Judge had in fact heard the applicant at the oral hearing on 11 January 2024, contrary to her submissions that there was no oral hearing.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review. 

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 31 January 2024 is accordingly dismissed.