RE KABIR TANIA

CACV 492/2020

[2021] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 492 OF 2020

(ON APPEAL FROM HCAL 973/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 September 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 23 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 8 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  She entered Hong Kong on 6 February 2015 to work as a foreign domestic helper.  She overstayed after her contract was terminated prematurely in February 2016.  She surrendered to the authorities on 21 March 2016.  She lodged a non-refoulement claim on 30 June 2016. 

3.  The applicant’s claim was based on threats from creditors of her husband.  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 8 December 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 April 2018, the Board dismissed the appeal on 23 May 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [24] of the Board’s Decision, the Board accepted that the applicant’s husband borrowed money and had to repay the loans.  However, the Board did not accept that the applicant suffered harassment or threats of an intensity sufficient to give rise to a fear of the proscribed harm.  The Board also did not accept that the applicant came to Hong Kong in search of international protection or that her problems proceeded from or were influenced by political motives.  It further found that state protection was available and that internal relocation within Bangladesh would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 30 May 2018 which contained the following grounds for judicial review, as summarized by the judge at [8] of CALL-1 Form:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s 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 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)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated resulting in groundless speculation that it would be safe for her to return to her home country; and

(6)  that the hearing bundle was given to her only a few days prior to her appeal hearing before the Board with the majority of the documents in English without translation thereby given her insufficient time to prepare for her appeal and to find reasonably affordable interpreter to assist her in her appeal to the Board which was procedurally unfair.

8.  In her affirmation in support of the leave application dated 30 May 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the unfair hearing led the Board to wrongfully question her credibility; and

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for her to return.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [15] of the CALL-1 Form:

“9. 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 how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was its decision unreasonable or irrational in the public law sense, 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 were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant with sufficiently relevant particulars or elaborations, I do not find any of them reasonably arguable for her intended challenge.

10. 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.

11. 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.

12. 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 decision 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.

13. Furthermore, the fact 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.

14. 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.

15. 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.”

Grounds for appeal

10.  In the Notice of Appeal dated 21 September 2020 the applicant contended that:

“the Plaintiff will face hardship life if he return back to her home country and that the [Board] has significantly relied on some source of news and relied on their own assumption which is not officially recognized, or it is simply hearsay. They have also relied on some cases and relied on some non-organization report which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”

11.  The applicant agreed by a letter of 21 September 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 21 January 2021 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 26 April 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

15.  The applicant also contended that she will face hardship upon her return.  The Board has already held that the applicant is unlikely to be subject to any of the proscribed risks of harm and the applicant has failed to substantiate any public law error in the Board’s Decision.  This ground is also without merit.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.