RE AKTER MST SHIRIN

CACV 412/2019

[2020] HKCA 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 412 OF 2019

(ON APPEAL FROM HCAL NO. 183 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (‘the Judge’) who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) and the decisions of the Director of Immigration (‘the Director’).

1.2  This appeal was scheduled to be heard on 21 January 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 21 October 2019, the applicant failed to lodge the skeleton argument by 24 December 2019. Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  She entered Hong Kong as a domestic helper but subsequently breached her conditions of stay by overstaying.  She raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by some members of the Awami League and by the family of a person killed by her husband Shamim.

2.2  The details of the applicant’s claim have been summarized by the Judge at [3] to [12] of the CALL-1 Form.

3)  The Director’s Decision and Notice of Further Decision

3.1  The Director decided against the applicant’s claim on 24 November 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as her other statutory and convention rights against torture and persecution.

3.2  By a Notice of Further Decision dated 14 June 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against her.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s decisions to the Board.  After a hearing held on 5 September 2017, the Board dismissed the applicant’s appeal against the Director’s decisions on 12 January 2018.

4.2  The Board found that even on the applicant’s own account of events, the applicant had not been inflicted with ill-treatment to a minimum level of severity.  The complained situation was not on account of any Convention reasons.  There was no state actor involved.  Internal relocation was viable.

5)  Decision of the Judge

5.1  The applicant complained before the Judge, amongst other things, that there was a lack of legal representation, lack of language assistance, lack of notice informing her of decisions made, that she was not feeling well at the hearing before the Board, that the Board gave undue consideration to country of origin information, and the Board wrongly decided on the issue of internal relocation.

5.2  The Judge held that there was no evidence to establish her complaint of lack of notice.  There was no evidence that the interpreter did not perform their job dutifully.  The Judge held that it was trite that there was no absolute right to free legal representation (and interpretation services) at all stages. The Board had due regard to country of origin information.  The Judge held that there were grounds for the Board to conclude that internal relocation was viable.  In respect of the applicant’s complaint that she was not feeling well before the Board, the Judge held :

‘ 40. The Applicant claimed she was not fully fit to give evidence during the Board hearing. She said the Adjudicator ignored her medical condition and did not allow her to see the doctor or adjourn the hearing to another day.

41.  The Adjudicator noted the Applicant had expressed she was not feeling well.  He understood the Applicant had to go to the hospital due to diabetic problem.  However, there was no evidence the Applicant was so unwell then that she could not participate in the Board hearing.  The medical documents produced by the Applicant to this court only showed she had to go to the hospital in May and June 2017.  She failed to prove she was not fit to participate in the Board hearing or the Adjudicator had been unfair to her.  There was no evidence the Applicant had ever applied for adjournment in the hearing.

42.  According to the Adjudicator’s report, the Applicant understood him and responded accordingly.  She did clarify certain matters in her NCF and the Record of Interview. In court, the Applicant confirmed she understood the Adjudicator’s questions and answered him.  She told the Adjudicator all of her case.’

6)  Grounds of appeal

6.  The applicant in her notice of appeal referred to her supporting affirmation.  In her affirmation, she simply stated that the Judge was wrong in holding there was no state acquiescence, and the Judge failed to provide detailed reasons.  

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there are no merits in the applicant’s appeal.  The Board’s Decision and the Decision of the Judge had already made the position clear.

7.3  The Judge had provided sufficient reasons in refusing leave to apply for judicial review.  Further, as for state acquiescence, not only is that not the main issue in the Board’s decision, clearly that is not a complaint against the Decision of the Judge.

7.4  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.