BANO MUMTAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 93/2022

[2022] HKCA 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 93 OF 2022

(ON APPEAL FROM HCAL NO 2762 OF 2018)

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JUDGMENT

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

1.  On 25 February 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 16 February 2022 (“the Order”)refusing to grant her leave to apply for judicial review. The intended judicial review concerned the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 February 2018.

BACKGROUND

2.  The Applicant is a national of India.  She entered Hong Kong with her two children in May 2015.  She lodged a non-refoulement claim, alleging that she would be at risk of being harmed by three moneylenders in her home country because she and her husband were unable to repay a loan owed to them. Originally, the Applicant made the application for leave to apply for judicial review on her own behalf and also on behalf of her two children.  Subsequently, the Applicant deleted their names from the application, presumably because they had turned into adults and would pursue their own course.  Details of the Applicant’s claim were summarised by the Judge at §§1-19 of the CALL-1 Form.

3.  By a Notice of Decision dated 14 February 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

4.  The Applicant appealed the Director’s decision to the Board.  On 19 November 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).

5.  The Board’s findings, so far as material, have been summarised by the Judge in the Form CALL-1 ([2022] HKCFI 468) as follows:

“[20] Having considered the papers, including the Country of Origin Information (‘COI’) and having regard to the authorities, in particular ST v Betty Kwan & Ors, the Board considered it appropriate to determine the appeal by way of paper review. The Board accepted the evidence of the Applicant as stated in the NCF and the screening interview. It proceeded to assess her claim under the four applicable grounds under the USM on the basis of her case. It found that she had not made out her claim for non-refoulement protection.

[21] The Board accepted the Applicant’s case about her husband’s loan from the money-lenders, that she and her husband were unable to repay the loan, that her husband and she fled to Hong Kong in 2009 and 2015 respectively. The centrepiece of her case is her fear of harm from the moneylenders, particularly the threats and the two assaults. The threats were verbal threats only and were never executed. In the first assault the Applicant was beaten, her head and face were swollen, but she recovered in about a week. In the second assault, neither the Applicant nor her sons were injured. On her evidence, the Board found that the injuries suffered by the Applicant and her sons did not fall within the scope of serious harm.

[22] The Board also accepted the Applicant’s evidence that the police took no action in respect of her husband’s and her complaints about the moneylenders’ actions. It noted the Applicant’s allegation that the authorities in India cannot protect her and her children because they are corrupt and always favour the wealthy people and those who have political affiliation. The Board also noted that on the Applicant’s evidence, the police made enquiries in respect of her complaint about the second assault. The police actually asked the moneylender to attend the police station, which indicated that the police performed its duty. Having extensively considered the COI, the Board was satisfied that state protection is available. It found that it was the Applicant who chose not to seek help from other government authorities in India. The Board had duly considered the well-foundedness of the Applicant’s fear.

[23] In respect of Persecution Risk, the Board found that the Applicant’s fear of ill-treatment did not fall within the definition of ‘persecution’ under section 37U(1) of the Immigration Ordinance in that it rose out of a private monetary dispute between individuals and not on account of race, religion, nationality, membership of a particular social group or political opinion which is a basic requirement which a claimant must prove to establish Persecution Risk. There was also no evidence of any public or government official being involved which is another essential element which must be proved. The Board was also satisfied on the basis of the COI that state protection is available. Hence, it dismissed the Applicant’s claim based on Persecution Risk ground.

[24] On the evidence, the Applicant and her sons did not suffer any serious physical harm which attained a minimum level of severity from the moneylenders. The Board was unable to accept there is substantial ground for the Applicant’s fear of a real risk of torture from the moneylenders if she is returned to India. Besides, state protection is available to prevent the risk. Hence, it dismissed the Applicant’s claim based on BOR 3 Risk.

[25] As BOR 2 Risk mainly relates to the death sentence and genocide, in the absence of other evidence justifying this ground, the Board found that the Applicant’s claim under this ground also failed.

[26] As for Torture Risk, the Board found that the Applicant and her sons never sustained any serious pain or suffering caused by the moneylenders. There was no evidence that public or government officials were involved, that the Applicant and her sons were threatened by any public officials or person acting in an official capacity. Furthermore, even if there was, the Applicant has not shown that she will face a foreseeable, real and personal risk if they return to India.

[27] On the evidence, the moneylenders have not located the Applicant between mid-April when she left home and 27 May 2015 when she fled India.  The Board was not satisfied that the Applicant has shown that the moneylenders would make use of their network to locate her if she were to move to some other parts of India. Lastly, based on the Country of Origin Information (‘COI’), the Board was satisfied that the Applicant, being a young female, could relocate to other parts of India without undue hardship and earn a living to support her children and avoid the moneylenders.”

THE JUDGE’S DECISION

6.  On 5 December 2018, the Applicant filed her Form 86 seeking leave to apply for judicial review in respect of the Director’s Decision and/or the Board’s Decision.

7.  On 16 February 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[30] Her grounds are all mixed and convoluted. The above are direct quotes or summaries of her grounds so far as they could be summarised. Ground (1) may be split into four different heads, namely unlawful exercise of discretion; procedural unfairness, irrationality and breach of the greater duty of care owed to the unrepresented applicant and irrationality. But this ground lacks particulars and she did not attend the hearing to provide them. Grounds (2), (3) and (4) overlap with each another and may be categorised under one ground of lack of language assistance. Ground (6) is not a ground and her request for an oral hearing was entertained but she did not attend the hearing…

…

[47] Having rigorously examined the Director’s Notice, the Board’s Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues; and observed a very high standard of fairness.  On the basis of the Applicant’s evidence, the Board found the Applicant’s fear of harm was not well-founded. Applying the law to the facts, the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of state protection and internal relocation.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could identify no error of law or procedural unfairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault. The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

THIS APPEAL

8.  In her Notice of Appeal dated 25 February 2022, the Applicant sought to set aside the Order and requested that leave to apply judicial review be granted.

9.  The Applicant stated in her grounds of appeal the following: “The High Court dismissed my leave to apply for judicial review. The High Court did not find any error of law or proceding [sic].  I will show some error.  My leave should be grant [sic].”

10.  In her 3-page written submissions dated 14 April 2022, the Applicant made some general complains about the Board’s Decision and the decision of the Judge.  She also alleged that the High Court did not give her any opportunity to tell her problem.

DISCUSSION

11.  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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)). Further, the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

12.  The allegation that the Judge did not give her any opportunity to “tell her problem” is without basis. As mentioned by the Judge at [6] of the Form CALL-1:

“The Applicant requested an oral hearing. The notice of hearing was posted to the Applicant’s last known address in Kam Sheung Road on 12 December 2021. It has not been returned through the post. The Applicant had previously responded to this Court’s letter sent to her at that address in May 2021. There is nothing to suggest that she had not received the notice of hearing. The notice contained a warning that if she does not attend the hearing, she will be deemed to have waived her right to make oral submissions at the hearing and the Court will deal with her application according to the paper already placed before the Court. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate to proceed with the determination of her application in her absence.”

13.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 16 February 2022, and has failed to raise any viable ground of appeal against the Judge’s decision.

14.  The Applicant’s appeal has no merits, and is dismissed.