RE AZOFA

CACV 475/2019

[2020] HKCA 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 475 OF 2019

(ON APPEAL FROM HCAL NO. 783 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 27 September 2019 in HCAL 783/2018 refusing leave to the applicant to apply for judicial review. 

2.  The appeal hearing was initially fixed for 3 March 2020.  Due to the public health risk arising from the COVID-19 pandemic and the general adjournment of proceedings, the appeal hearing was adjourned to 18 May 2020.  Pursuant to the directions of the Registrar of Civil Appeals given on 18 November 2019, the applicant shall lodge with the court 3 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 20 April 2020. Despite the letter sent by the court on 8 April 2020 reminding the applicant of the aforesaid directions, the applicant failed to lodge her written submissions.  The Registrar further directed that in the event of the applicant’s failure to lodge written submissions, the applicant shall be deemed to waive her right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

3.  The applicant is a National of Bangladesh.  She arrived in Hong Kong on 30 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 November 2016 or within 14 days of its early termination.  On 13 March 2015, her contract was prematurely terminated but she did not depart Hong Kong within two weeks’ time.  On 2 April 2015, she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she and her daughter would be harmed or even killed by her abusive husband. 

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 1685.  We shall not repeat the same here.

5.  By the Notice of Decision dated 30 June 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 28 February 2018, the Board dismissed the appeal on 12 April 2018.  In its decision the Board accepted that the applicant might have been abused by her husband in Bangladesh, but her evidence was inconsistent and incredible as a whole.  Further, given the lengthy separation of the parties and in the absence of any reliable evidence that the husband still posted any threats to her, the Board did not accept that the applicant and her daughter would face any real risk of harm if refouled.  In any event, state protection would be available to her and her daughter and internal relocation to other parts of Bangladesh such as Dhaka was a reasonable and viable alternative as the applicant had lived and worked in Dhaka for years before and it would be remote for her husband to be able to locate her and her daughter.  For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

The Judge’s decision

7.  On 4 May 2018, the applicant filed her Form 86 to apply for leave for judicial review against the decision of the Board.  In her supporting affirmation, she advanced the following grounds for her intended challenge:

(1)  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 their claim;

(2)  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 their claim;

(3)  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;

(4)  irrationality in the Adjudicator’s failure to analyze and assess whether state protection existed in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Adjudicator’s failure in taking account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in applying the incorrect standard of proof in the Board’s decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant.  

8.  By the Decision of 27 September 2019, the Judge refused to grant leave to the applicant to apply for judicial review.  In the Decision, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [19] for his refusal to grant leave:

“13. 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 in what way did the adjudicator fail to take into account 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 the legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them, or that they are reasonably arguable for her intended challenge.

14. 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 argument and other documents all of which were in English and thereby given her insufficient time to prepare for the appeal.

15. Even if it is true that the hearing bundle indeed came to the applicant late as alleged, and she never provided any documentary proof such as the date of the covering letter which accompanied the bundle, I note that most of the documents including her NCF, record of screening interview and the Director’s decision should be well familiar to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance and interpretation, 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 the appeal. As such I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board, and that this complaint is not reasonably arguable either.

16. As has been repeatedly emphasized by the Court of Appeal, 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 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.

17. As noted above I do not find any of the applicant’s bare assertions to have any basis or merits, and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18. 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.

19.  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.”

The Appeal

9.  In the Notice of Appeal filed on 8 October 2019, the applicant put forward the following grounds of appeal:

(1)  The Judge was wrong in law in finding that there was no state acquiescence or involvement.

(2)  The Judge had failed to provide detailed reason in support of his decision.

(3)  The Judge had failed to consider the Country of origin information (“COI”) in making his decision.

Discussion

10.  Ground (1) and (3) can be dealt with together.  This Court has repeatedly held that the 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 the decision of the Board: see Re Nupur Mst [2018] HKCA 425, CAMP 54/2018.  Here, the applicant’s case is premised on domestic violence without any state or political involvement and her case was rejected on the issue of credibility by the Board.  After careful consideration of the papers, we agree with the Judge that the Board has proper basis for its findings and conclusions and its decision is without flaw.  Ground (1) and (3) are plainly not arguable.

11.  On ground (2), the applicant complains that the Judge did not provide detailed reason in support of his decision.  The complaint is clearly without merit.  As mentioned in [8] of this judgment, the Judge had set out his analysis and decisions in detail at [13] to [19] of the Decision.  Ground (2) must fail.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.