HEMROM ESTER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1923/2023

[2024] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1923 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 25 October 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 22 December 2022 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 January 2022 (the “Notice”).

2.  The Applicant is a Bangladeshi national. She last entered Hong Kong on 18 April 2019 to work as a foreign domestic helper. Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authorities on 20 October 2020. On 5 November 2020, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

Extension of time to file leave application

3.  The leave application was filed more than ten months after the date of the Decision sought to be reviewed. Pursuant to Section 21K(6) of the High Court Ordinance and Order 53, Rule 4(1) of the Rules of the High Court, the leave application was made more than seven months out of time. Leave to file the leave application out of time is required.

4.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton NPJ. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.

5.  The Applicant gave no explanation for the delay in making the application in her Form 86 or supporting affirmation. At the hearing, the Court explored the reasons for the delay with her. The Applicant appeared before the Board on the hearing of her appeal on 28 October 2022. The Decision was issued 22 December 2022. She claimed she was held in prison custody since 28 November 2022 until 28 September 2023. She admitted she had not inform the Board about her imprisonment. She said the Decision might have been sent to her home. She learned about the Decision from the prison staff. She told the officer that she did not want to go back to her home country. Then, a month later, she received a copy of the Decision in May or June 2023. She admitted that she did nothing about reviewing the Decision, until 25 October 2023 when she filed the leave application.

6.  The Court noted that the address she gave on the Form 86 is care of Nei Kwu Correctional Institution in Hei Ling Chau and that she is currently detained in that institution. Be that as it may, on her own admission, she was held in prison custody one month after the hearing before the Board, but she never informed the Board of her change of address. Hence, she did not receive the Decision in good time for her to make the leave application within time. As was held by the Court of Appeal in Karamjit Singh[7] and Re Hasmi Rizwan Imran[8], it is the applicant’s obligation to keep the court, likewise the Board in this case, informed of her means of contact. If she does not, she has to bear the consequence which her failure brings. Furthermore, also on her own admission, she did nothing to prosecute the leave application since receiving a copy of the Decision in May or June 2023. Even assuming for her benefit that it was in June that she received a copy of the Decision and even ignoring her previous delay, she sat on the Decision for more than four months before making the leave application. Her delay of more than seven months is substantial and inexcusable. Extension of time to file the leave application is refused. Nevertheless, for completeness the prospect of success of her proposed judicial review is assessed below.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed upon her return to Bangladesh by her father because of her conversion from Christian faith to Muslim and by her second ex-husband because she had accused him of causing the death of their child.

8.  The Applicant, now aged 35, was born and raised in Godagari, Rajshahi, Bangladesh. Her ethnicity was Bengali and she was born into a Christian family. She received ten years of education. She had worked in a garment factory and as a foreign domestic helper in Hong Kong.

9.  She married her first husband in around 2006 and they had a son together. She divorced in about 2009 because he was a drunkard, a gambler and was violent towards her. She stopped contacting him after the divorce and their son lives with her first ex-husband.

10.  Then, she came to know her second husband, who is a Muslim. She converted to Muslim faith for him and married him in around 2018, but his family did not approve of their marriage as she was a divorcee. Her father disapproved of her conversion and disowned her. He threatened to kill her if he saw her again and ceased contact with her after disowning her.

11.  Her second husband became a heavy drinker. Three or four months after their marriage, he started assaulting her with fists once or twice a week. In one of the assaults, she lost consciousness and suffered permanent hearing loss as a result. She gave birth to their son who was identified to be suffering from a congenital blood disease which required regular blood transfusion every three months. Thus, the Applicant left her son to the care of her second husband and his mother, while she went to work in Hong Kong to earn money for her son’s medical treatment.

12.  While in Hong Kong, she was informed by the maternal uncle of her second husband in around 2020 that her son was very ill but her second husband had not looked after him well and did not take him to the hospital. The Applicant called her second husband who denied having neglected their son and assured her that he would look after him well. On the following day, she was informed by the maternal uncle that her son had died. The Applicant tried to call her second husband numerous times but could not reach him. When he finally answered her call, he threatened to kill her just as he had killed their Son. He did not explain what he meant. The Applicant was later informed by the maternal uncle that her second husband had divorced her. She had no contact with him ever since. She had not received the court documents about the divorce. She believes they had been sent to her father’s or sister’s address and she had not communicated with them since her father disowned her in 2018.

13.  The Applicant is now married to a Pakistani Muslim (her “third husband”) in a Muslim ceremony in Hong Kong, though the marriage was not registered at the marriage registry in Hong Kong.

14.  She claimed that she could not go back to Bangladesh because both her father and her second ex-husband had vowed to kill her if she returned to Bangladesh. She believed internal relocation was not viable due to her status as a single woman and she would be discriminated. She also has no confidence in state protection because of corruption and lack of support for women in her situation.

The finding of the Board

15.  The Applicant testified before the Board. The Board noted that her testimony contained many inconsistencies and additions to her evidence in the NCF and screening interview. It found she had exaggerated the alleged threats from her father and second ex-husband. Despite finding her incredible, it assessed her claim on the basis of the events as she asserted. It found that she had no reason to go back to her second ex-husband on her returned to Pakistan; that her second ex-husband could derive no benefit from harming her; and hence her risk of harm from her second ex-husband is low. Though her father had threatened to kill her, he never carried out the threat when she was married to her second ex-husband. It therefore found the risk from her father was also low. The Board also noted that the Applicant had now married to a Pakistani Muslim in Hong Kong and they can register their marriage in Hong Kong. If they did, the Applicant would not be regarded as a single woman and would not be discriminated for this reason upon her return to Bangladesh.

16.  It found on the basis of authoritative and credible country of origin information (“COI”) that despite the Bangladeshi police may not be as efficient as those in other countries, the government has been implementing measures to improve the police force. It found adequate state protection and assistance from non-governmental organisations are available to the Applicant. It was only her choice not to seek help from the authorities. The Applicant had also demonstrated her ability to relocate to other cities, such as Dhaka or Hong Kong and support herself there. It therefore found that internal relocation was feasible and that she could safely move to Dhaka to avoid the perceived threats.

17.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. It therefore dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

18.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[9].

Grounds for judicial review

19.  At the hearing, after the above legal principles had been explained to the Applicant, she confirmed she had no complaint about procedural unfairness or irrationality and would leave it to the Court to look for errors of law on her behalf. However, she had advanced the following six grounds of application in her supporting affirmation:

(1)  The Decision was not reasonable and unfair; she must be protected from extra-judicial killings she may face, if refouled (Paragraphs 2 and 3 of her affirmation).

(2)  The Decision is unfair as the Director failed to give proper weight to the presence of state acquiescence (Paragraph 4 of her affirmation).

(3)  The Decision is unreasonable and procedurally unfair because the Director placed too much reliance on COI but failed to take the Applicant’s personal background and experience into account (Paragraph 5 of her affirmation).

(4)  The Director failed to take such arguments into account or give enough argument enough weight (Paragraph 6 of her affirmation).

(5)  The Board acted procedurally improperly and/or unfairly when assessing whether to accept her explanations and unreasonably required her to respond to questions (Paragraph 7 of her affirmation).

(6)  The Decision is irrational because on the findings the Board should have allowed the appeal (Paragraph 8 of the affirmation).

20.  These grounds revolve around the finding of fact by the Board, unfairness and irrationality. She said she had told the truth and complained that the Board did not accept her evidence. Insofar as finding of fact, finding of credibility and the weight to be given to the evidence are concerned, these are matters solely with the realm of the Board, which the Court will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision. Furthermore, although the Board found she was not credible, the Board actually assessed her claim on the basis of the case as she alleged. Hence, there is no basis of complaint about the Board’s finding of primary facts.

21.  As for her complaint about unfairness and irrationality, it is contrary to her earlier admission that there was no procedural unfairness or irrationality in the Decision. When asked about particulars of the unfairness and irrationality, she agreed that there was none. She admitted in particular that there was no evidence of state acquiescence. Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could minimise or prevent the risks by seeking state protection or safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as these are finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on the basis of these facts that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board to make, which the Court on a judicial review will not interfere. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

23.  For the above reasons, extension of time to file the leave application and the application for leave to apply for judicial review are refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1