RE MOMOTAZ

CACV 63/2019

[2019] HKCA 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 63 OF 2019

(On appeal from HCAL 1097 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 MOMOTAZ, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 31 January 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 13 June 2018 (“Board’s Decision”), which refused to “re-open” 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 14 August 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 estranged husband, Saiful Islam (“Saiful”) and his political associates.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born to a family of supporters of the Bangladesh Nationalist Party (“BNP”).

(2)  The applicant joined the Chatra Dal (“CD”) (i.e. BNP’s student wing) in late 2007 after admission to college and rose in around the end of 2008 to the rank of general secretary, a position which she continued to hold even after graduation in 2009.

(3)  Beginning from late 2009, Saiful (whom the applicant did not know before) started to court the applicant.  In mid 2010, they started to date.

(4)  In 2012, the applicant accepted Saiful’s proposal and the two married without informing their respective families.  After initially living separately, the applicant and Saiful moved in together in around the end of 2012.

(5)  The applicant’s parents felt insulted by their daughter’s marriage without their knowledge and disowned the applicant.

(6)  The applicant found out that Saiful was the general secretary of the Chatra League (“CL”) which is the student wing of the Awami League (“AL”) after living with him for 2 to 3 months.

(7)  The applicant started to regret the marriage after Saiful became furious and put his hands around her throat one day in early 2013 when she questioned him about the source of the money that he brought home.

(8)  Thereafter, Saiful would slap the applicant around when the applicant cried. 

(9)  The beatings increased in frequency and intensity with Saiful’s drinking.  He said that he would stop beating the applicant if she would start working with the AL, which she refused.

(10)  Saiful even allowed his friends to misbehave towards the applicant.

(11)  One day in early 2014, at about 9 pm, Saiful’s political leader, a businessman called Pinku, visited their house and queried why the applicant had not joined the AL.  Saiful beat the applicant severely with his bare hands and legs after Pinku left.

(12)  A few days later, the applicant was detained by Saiful and some AL people, including Pinku.  She was beaten by Saiful who blamed the applicant because his party leader had started to doubt him because of her.  He told the applicant to either join the AL or go away.  She reported this incident to the police, but they declined to accept her report once they heard that Pinku was involved.

(13)  Finally, in around May 2014, the applicant took all her belongings and 150,000 Taka from the house while Saiful was not at home and went to stay with a friend in Dhaka City.  While in Dhaka, she received 7 to 8 text messages on her mobile phone from Saiful who threatened to kill the applicant immediately if she was found by members of the CL.

(14)  While in Dhaka, the applicant started to look for a job.  After staying with the friend in Dhaka for 4 days to a week, the applicant went to an employment training centre for employment training in Bagura in around June 2014.  She stayed in Bagura for the next 3 months without coming to any harm.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant arrived in Hong Kong on 4 November 2014 to work as a foreign domestic helper. After her employment contract was prematurely terminated on 24 December 2014, she did not leave within 14 days as required by the law and had overstayed since 8 January 2015.  She surrendered to the Immigration Department on 6 May 2015. She raised the NRF Claim by way of written representation on 18 September 2015.  She once sought to withdraw the NRF Claim by letter dated 27 February 2017 and then to re-open the same by letter dated 18 April 2017.  She submitted her non-refoulement claim form on 10 July 2017.

4.  The applicant made no contact with Saiful, her family or friends in Bangladesh after she came to Hong Kong.  However, she did learn from one of her cousins that Saiful was involved in a murder case back in around 2008 or 2009, for which he was imprisoned.

Director’s Decision

5.  In processing the NRF Claim, the Director’s representatives conducted a screening interview on 2 August 2017 with the applicant who had legal representation by the Duty Lawyer Service (“DLS”).

6.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim to be unsubstantiated.

(1)  First, it was not accepted that the applicant faced any real risk of being harmed or killed by Saiful or AL members if she should return to Bangladesh. 

(a)  The applicant’s account was found to be doubtful.  There was no evidence to prove the applicant’s or Saiful’s alleged respective political affiliations or their marriage.  The applicant was unable to tell the number of members of parliament in her constituency in 2008.  The BNP candidate she claimed to have supported in fact did not participate in the 2008 election in the constituency mentioned by the applicant.  She was unable to recognise either the president or the general secretary of the political organisation in which she was supposedly an active member.  There was no reasonable explanation why Saiful and his associates would fear her contribution to the CD or the BNP. 

(b)  The alleged ill-treatment suffered by the applicant in the various incidents she described, even if true, did not attain the required minimum level of severity.

(c)  The applicant had not adduced any evidence to show that Saiful and his associates would remain interested in locating her to pose threats or harm against her after a lapse of almost 3 years.

(2)  Second, it was also not accepted that reasonable state protection would not be available to the applicant upon her return to Bangladesh.  There is objective country of origin information (COI) showing that the Bangladeshi government has taken practical steps to improve their effectiveness and to monitor the conduct of the Bangladeshi police. The availability of state protection would lower or even negate the level of risk (if any).

(3)  Third, reasonable internal relocation alternatives are available to an able-bodied adult with both domestic and overseas working experiences like the applicant in a big and populous country like Bangladesh.  The applicant actually stayed in Bagura without encountering any harm for 3 months in 2014 before she came to Hong Kong.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.

8.  By a letter dated 18 May 2018 to the Board, the applicant sought to withdraw her appeal.

9.  By a letter dated 24 May 2018, the Board informed the applicant that her request for withdrawal of her appeal was accepted and that her appeal was thereby dismissed.

10.  Then, by a letter dated 7 June 2018 to the Board, the applicant requested the Board to re-open her appeal case, explaining that:

“Previously I have withdrawn my appeal by thinking my problem was solved in Bangladesh and I was ready to return back to Bangladesh. But the problems still is in danger in my life …”

11.  The Board replied by letter dated 13 June 2018 that following the disposal of the applicant’s appeal upon her withdrawal of the same, no further action could or would be taken in relation to the applicant’s appeal because the Board was “functus officio”, meaning that it had no power or authority to deal with the applicant’s appeal after accepting the withdrawal of the same (i.e. the Board’s Decision).  In support, the Board referred to Deputy High Court Judge Kent Yee’s decision in Hussain Tasawar v Betty Kwan, Adjudicator (Torture Petitions) of the Petition Team of the Security Bureau, HCAL 20/2015 (17 March 2017)[5].

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 1097/2018 on 14 June 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.

13.  The Form 86 did not set out any grounds upon which relief was sought.  However, by an affirmation filed on the same date, insofar as it is material, the applicant said in paragraphs 8 to 11 as follows:

“8. On 18 of May 2018, I submit a letter to the [Board] to withdraw my appeal in view of that, I could return back to Bangladesh and assumed that the problems I was previously facing would have solved or gone away. …

9. But I was wrong. After confirming the danger and life threats with my family members and friend in Bangladesh I went back to the [Board] immediately to re-open my appeal and write a request letter on 8 of June 2017. …

10. But the Adjudicator from the [Board] didn’t show any mercy on my request and refused my appeal just because I withdraw my appeal before. This is so unfair to me.

11. I was ready to returned back to my home country Bangladesh just I thought I will be safe in there that’s why I withdraw my appeal. But after came to understand the dangerous situation and futur life threats I requested to [the Board] to take another look of my claim but the [Board] unfairly just refused my Appeal.” (emphasis added)

14.  The Judge’s reasons for refusing leave after an oral hearing can be found in [15]-[21] of the Form CALL-1 dated 31 January 2019, [2019] HKCFI 253, as follows:

“DISCUSSION

15.  The applicant has appeared before me as she requested a hearing by the Court.

16.  She confirmed that she deliberately made her application for withdrawal of her appeal as she was informed that her problem in Bangladesh had been solved.

17.  However, she was subsequently told that in fact her problem had not been solved.  She therefore asked for reinstatement of her appeal.

18.  She has not read the case referred to her by the Board herself. Nor had she asked for legal advice.

19.  The applicant was informed that according to the decision of the Court in that case, the Board had no power to deal with her appeal once the Board had accepted her application of withdrawal if her application for withdrawal was made by herself consciously.

20.  I agree with the learned Deputy Judge of the cited case.  The Board was right to have made the decision.  The applicant has no grounds to challenge its decision.

CONCLUSION

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

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed on 8 February 2019, the applicant appealed against the refusal of leave for judicial review.  The notice of appeal, however, did not set out any ground of appeal.

16.  The applicant filed written submission in support of the appeal on 23 April 2019, in which she just repeated the events leading to her landing and seeking refuge in Hong Kong and the danger that she would face if she should return to Bangladesh.

17.  The applicant appeared in person at the hearing of the appeal on 3 June 2019.  She had nothing to add to her notice of appeal or written 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 shall interfere 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.  Other than barely asserting that it was unfair for the Board to refuse to reinstate her appeal because she had withdrawn it, the applicant had not identified to the Judge in what way such refusal constituted an error of law, procedural unfairness or irrationality on the part of the Board.

21.  Nor has she articulated to this court how the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  This court (Yuen JA and Lisa Wong J) dealt with a similar situation in Re Das Purnima Rani, CACV 85/2019, unreported, 13 June 2019, [2019] HKCA 669 in which we referred to the judgment of this court (Lam VP and Barma JA) in Re Ali Usman, CACV 70/2018, [2018] HKCA 955 which approved Deputy High Court Judge Kent Yee’s judgment in Hussain Tasawar (see para 11 above) and held at [42]-[45] that:

(1)  Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. 

(2)  The only option open to the claimant in such a situation is to make a fresh non-refoulement claim under s 37ZO(2)[6] of the Immigration Ordinance if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

(3)  Where the withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application.

22.  Applying these principles, the applicant did not appear to contest the validity of her earlier withdrawal of her appeal to the Board against the Director’s Decision.  Indeed, as volunteered by the applicant in her letter dated 7 June 2017 to the Board and her affirmation in support of the application for leave for judicial review and as confirmed by her to the Judge at the oral hearing of the Form 86 ([16] of Form CALL-1), she made a deliberate and informed decision in May 2017 to withdraw her appeal to the Board against the Director’s Decision.  She alleged that she subsequently came into more and/or different information but has failed to identify what that information was, or explained why she did not have (or could not have found) such information when she withdrew her appeal. Her subsequent of mind could not, in our view, invalidate her earlier withdrawal of the appeal before the Board.

Disposition

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