|
HCAL 2284/2024
[2025] HKCFI 473
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2284 of 2024
|
BETWEEN
|
| |
Marma Ramraching |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
|
Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 27 November 2024 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 15 April 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 May 2023 (the “Notice”), refusing her non-refoulement application.
Extension of time to file the leave application
2. The leave application was filed almost seven and half months after the date of the Decision sought to be reviewed. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. By 28 November 2024 when his application was filed, it is almost 4 months out of time. Extension of time to file the leave application is required.
3. In considering whether to grant extension of time to file a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1]. Merits is usually a very important factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone without consideration of merits.
4. Despite clear directions in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant did not provid any explanation for the delay. At the hearing, the Court attempted to explore the reasons for the delay with her. She said she never received any decision from the Board. She attended the screening interview in the Immigration Department and then she received the notice of hearing from this Court. She did not appreciate she was late and offered no explanation for the delay. Though the Court patiently took her through the procedures and showed her the Form 86 and her supporting affirmation, she remained adamant that she had never received any Decision from the Board. She said during one of her regular reporting to the Immigration Department in October 2024, she was held in immigration detention in Castle Peak Immigration Centre. Then, an inmate advised her to make a leave application in order to be granted recognizance by the Director. So a lawyer prepared the Form 86 for her. She signed the form and the supporting affirmation. She identified her signatures on the Form 86 and supporting affirmation but had no idea about the decision dated 15 April 2024 mentioned in the Form 86. The Court is cognizance of the fact that an applicant may not appreciate the nature of the variousprocedures in the non-refoulement process. If after having been taken through the proceedings and she remained adamant that she had never received the Decision, the Court cannot even find a starting point to enquire about the reason for the delay. The Applicant has no explanation for the very substantial delay. Out of caution, the Court also considered merits of the leave application and found there is none. Then, following the decision of the Court of Final Appeal in Po Fun Chan v Winnie Cheung, this Court find it appropriate to refuse to grant her extension of time to file the leave application and to refuse her leave application.
The Applicant’s case
5. The Applicant is a Bangladeshi national. She entered Hong Kong to work as a domestic helper on 17 October 2022. She overstayed since 23 February 2023 when her contract of employment was terminated. She was arrested by the police for overstaying on 3 March 2023, and was referred to the Immigration Department on 7 March 2023. She made a non-refoulement claim on 10 March 2023. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. Her claim was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the Applicant claims that if returned to Bangladesh, she will be harmed or killed by a loan shark for being unable to settle her father’s loan. In addition, being a buddhist, the Applicant is afraid of being harmed by the Muslim community.
7. The Applicant, now aged 24, was born in Ogeyachari, Kotwali, Rangamati, Bangladesh. She is single. Her parents and brother had already passed away. She received formal education for three years and had about three to four months’ experience working as a domestic helper in Hong Kong.
8. The Applicant claimed that her father borrowed a loan from the loan shark in early 2022 in order to pay for her mother’s medical expenses. The loan shark was a Muslim. The loan had to be settled within six months. The Applicant did not know the name and background of the loan shark or other details of the loan including the principal and interest rate.
9. One day in 2022, her father told her that he was going to repay half of the principal to the loan shark. His father never returned home that night. The next morning, her father’s dead body was found near a river near her home. The Applicant did not know the cause of her father’s death, as no post-mortem examination was performed. She believed he was killed by the loan shark. She did not report the case to the police because she worried that it would trigger revenge from the loan shark.
10. Around a week later, the loan shark called her mother and brother to request a meeting. The Applicant did not know where the meeting was to be held. Her mother and brother disappeared after two to three days. Concerned about her own safety, the Applicant moved to stay with her aunt. Within the same month, her aunt received a call from an unknown person telling her that the Applicant’s mother and brother had been killed. The Applicant did not know the details of their death and never saw their dead bodies. She did not call back that caller because she did not have a mobile phone. She did not register any complaints with the police, as she was afraid the loan shark would revenge. On her aunt’s advice, she came to work in Hong Kong, as it was unsafe for her to stay in Bangladesh.
11. The Applicant does not consider she could access state protection because the police in Bangladesh are corrupt and would not intervene because the dispute between her and the loan shark is of the nature of a private monetary dispute. She does not believe internal relocation viable, as she does not have family ties in other regions of Bangladesh and the loan shark could locate her throughout the country through his powerful network.
The finding of the Board
12. The Applicant did not attend the hearing before the Board. The Board’s staff was able to reach her on the telephone. She acknowledged she had received the notice of hearing but gave no explanation for not attending the hearing. Hence, the Board determined her appeal pursuant to section 15 of Schedule 1A of the Immigration Ordinance in the absence of the Applicant.
13. The Board found that the bulk of the evidence adduced by the Applicant is in the form of assertions without any documentary proof. It found that the conflict between the Applicant and the loan shark stemmed from a private matter, ie a loan taken out by her father. Neither the Applicant nor her aunt had any direct encounter with the loan shark. Though the aunt received news of the death of the Applicant’s mother and brother from an unknown person, there was no further incidents and/or contact thereafter. The Board was not satisfied that the Applicant will face ill-treatment which attains the minimum level of severity and will face a genuine and substantial risk of being subjected to such ill-treatment. It also found the Applicant’s fear of being harmed or killed is not well-founded.
14. Though the Applicant suggested she was in fear of the hatred of the Muslim community, there was no suggestion that such hatred was motivated by religious reasons and there was no suggestion that the Applicant and/or her family had been attacked or harmed previously.
15. On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Bangladesh. However, the same COI also suggested that there are objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. It therefore considered there is reasonable state protection readily available to the Applicant in Bangladesh.
16. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the decision in the Notice.
Legal principles applicable to judicial review
17. The role 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. The court will scrutinize 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[7].
Grounds for judicial review
18. After the legal principles in the preceding section had been explained to the Applicant, she confirmed that she would leave it to the Court to look for errors of law in the Decision has no complaint about procedural unfairness or irrationality in the Decision. In her supporting affirmation, she complained that the Director failed to conduct any proper inquiry and carefully understand her situation in assessing her claim. It is assumed for her benefit that her complaint is also directed at the Board. In effect, she is disputing the finding of fact by the Board.
Overall scrutiny
19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. The Applicant argued that the Board could not make proper finding of fact without sending the immigration officers to her home country to investigate her true situation. Her suggestion is unusual and not practicable. In any event, it is unnecessary to do so as the Board assessed her case on the basis of the facts as she alleged. There is nothing further to investigate. The Board’s findings are finding of law or fact or mixed finding of fact. Insofar as they are finding of law, they are absolutely correct. Insofar as they are they are finding of facts, they 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 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. This is a further reason which supports the refusal to grant extension of time to file the leave application which has no merits at all.
Conclusion
20. For the above reasons, leave to file the leave application out of time and the application to for leave to apply for judicial review are refused.
Dated the 28th day of January 2025
| |
( Seline Sze )
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 28/01/2025
Marma Ramraching
Applicant’s ref. no:
Nil |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/01/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21755
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 272/23 (formerly RBCZ 5000236/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] (2007) HKCFAR 676 at 693B to C, per Litton NPJ
[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[5] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at [14(1)]
|