RE AKTER MST ETY

CACV 363/2022, [2024] HKCA 283

on appeal from HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 363 OF 2022

(ON APPEAL FROM HCAL 1107 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 24 August 2022[1] refusing leave to the applicant to apply for judicial review (“the JR Decision”, as contained in “the CALL-1 Form” dated the same date).

2.  The applicant, had by a Form 86 filed on 25 April 2019 (“the Form 86”), sought to apply for leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 12 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 December 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  In her affirmation in support of the Form 86 also filed on 25 April 2019 (“the Affirmation”), the applicant, apart from setting out her grounds for judicial review, requested that an oral hearing be fixed for the determination of the JR Application.

Procedural background and the applicant’s right to an oral hearing

4.  O.53 r.3 of the Rules of the High Court (Cap.4A) (“the Rules”) sets out, inter alia, the applicable procedure for the determination of the JR Application.  Rule 3(3) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.  Despite the applicant’s request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief (at [2] of the CALL-1 Form), the JR Application had not been listed or fixed for hearing.

6.  By a letter dated 18 March 2022 to the applicant, the Judge’s clerk informed her of the following:

“We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so. Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.

If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper.  A written decision will be sent to you at your last known address.”

7.  The applicant did not respond to that letter, and the Judge, purportedly invoking his discretionary and case management powers under O.1A r.1(b), O.1B r.1(1) and O.53 r.3(3) of the Rules, proceeded to determine the JR Application on the papers (see [2]-[5] of the CALL-1 Form).

8.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the JR Application on the papers.  It is therefore arguable that the Judge had erred in law and fact in determining the JR Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; Re Pervin Jahanara [2023] HKCA 1064 at [20].

9.  It therefore follows that in exercising his discretion in refusing leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the JR Decision on an erroneous basis.

10.  In the premises, notwithstanding that the applicant in this case had consented to the disposal of the present appeal without an oral hearing, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present appeal, as well as to make submissions which she would have made to the Judge in the court below had a hearing for the determination of the JR Application been fixed pursuant to her request.

11.  By reason of the problematic basis on which the JR Decision was reached by the Judge, this court will, in determining the present appeal, exercise afresh the court’s discretion with respect to the JR Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review should have been granted to the applicant by the Judge.

Background to the applicant’s non-refoulement claim

12.  The applicant is a national of Bangladesh.  She entered Hong Kong as a foreign domestic helper on 29 March 2014.  However, she overstayed after her employment was prematurely terminated, and she surrendered to the police on 2 November 2015.  She thereafter raised a non-refoulement claim on 5 November 2015.

13.  The applicant’s claim was based on a fear of being harmed or killed by her uncle, her husband, her sister’s husband and the village chairman, Mr Munna (a member of the Awami League (“AL”)), by reason of her extra-marital affairs.  The details of the applicant’s claim have been summarised by the Judge at [7] and [8] of the CALL-1 Form.

14.  By a Notice of Decision dated 14 December 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5]. 

15.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was fixed on 19 December 2018.  The applicant appeared at the hearing in person. 

16.  The Board made the following material findings based on the evidence filed and the live evidence given by the applicant at the hearing.  As regards the alleged threat of harm from the applicant’s (Muslim) relatives and Mr Munna by reason of her affair with a Christian man (“Samin”):

(1)  the applicant’s account as stated in her written signification was that she had eloped with Samin, however, this was not mentioned in her non-refoulement claim form (“NCF”), and she stated at the hearing that she in fact did not elope with Samin, but stayed and was found by her relatives at Samin’s house, whereupon she returned home (at [36], Board’s Decision);

(2)  in the NCF, she stated that she had never resorted to seeking help from the police, but stated at the hearing that she in fact did visit the police station but was turned away (at [45], Board’s Decision);

(3)  she had not been contacted by her relatives since she moved to Dhaka in 2013, nor is it known whether Mr Munna was still the village chairman of her home village (at [37], Board’s Decision);

(4)  she spent 7 and 3 uneventful months respectively in Dhaka and Bogra after leaving her home village and Mr Munna nor her relatives were able to locate her (at [37]).

17.  The Board found that inconsistencies and contradictions in the material aspects of the applicant’s evidence rendered her claims of risk of harm incredible (at [36], Board’s Decision).  In any event, the Board took the view that state protection and suitable options of internal relocation were available to the applicant in order to lower the risk of harm, if any.  Specifically, the Board took into account the following matters:

(1)  the applicant did not attempt to seek assistance from the police, as she believed they would act favourably towards Mr Munna, who was an AL member (at [45]);

(2)  notwithstanding that there was objective Country of Origin Information (“COI”) suggesting that police corruption was not unheard of in Bangladesh, there was also COI which suggested that the Bangladesh government has made efforts to improve performance of the police, including having instituted the Police Reform Programme (at [46]);

(3)  the applicant may, to minimise the risk of harm (if any), internally relocate to cities such as Dhaka (the capital and largest city in Bangladesh) or Khulna (at [71]-[77]).

18.  The applicant’s appeal was therefore dismissed by the Board’s decision dated 12 April 2019 (i.e. the Board’s Decision).

The Judge’s decision

19.  By the Form 86, the applicant sought to judicially review the Board’s Decision, without setting out any grounds for review.

20.  In her supporting affirmation filed on the same date, apart from requesting that her application for leave to apply for judicial review be determined at an oral hearing, the applicant also set out her grounds for review, as summarised by the Judge at [15] of the CALL-1 Form, as follows:

“(1) Procedural impropriety/irrationality: failure to properly apply para.2 of the UN Committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant country of origin condition; failure to give sufficient for BOR 3 risk; failure to consider her fear that her family members would pursue and harm or even kill her.

(2)   Error/misdirection in law: failure to take into account the psychological strain and threats to her personally.”

21.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [22] of the CALL-1 Form:  

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …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.’

19. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The grounds in paragraph 15 above do not assist her application. Ground (1) is only her opinion without evidence in support and in fact, the Board dealt with BOR 3 risk. Ground (2) is not relevant because she had not raised this issue with the Board according to the Board’s Decision. Up to this stage, she has not raise what psychological issue should be taken into account. She has to rely upon expert evidence on this issue, but there is none from her.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

22.  In the Notice of Appeal filed on 6 September 2022, the applicant complained that the Judge failed to consider the fact that her life would be at risk upon refoulement, and that he had failed to make enquiries “into the Country of Origin Condition that authority would not [be] able to protect [her] from [her] enemies”.

23.  In her written submissions dated 20 September 2022, the applicant repeated the dangers and apparent risks of harm she may face should she be refouled to Bangladesh, as well as complaining, inter alia, that the Judge “did not focus [on her] fear and observed country of origin conditions in Indonesia” (emphasis added).

24.  We acknowledge that the applicant had in the supporting affirmation to her Form 86, under O.53 r.3(3) of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was not open to the Judge to determine the leave application on the papers in these circumstances as he purported to do. 

25.  This court therefore directed that an oral hearing be fixed for this appeal as explained in [10] above.  The Board and the Director were excused from attendance at the hearing.

26.  We heard the appeal on 16 January 2024.  The applicant appeared in person at the hearing, and with the assistance of an interpreter, stated that she had no further submissions to add to the matters already stated in the documents filed with the court.

Discussion

27.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered the applicant’s JR Application afresh.

28.  Thus, notwithstanding the lack of an oral hearing before the Judge, the applicant was afforded an opportunity to make submissions to this court at the hearing of the present appeal on 16 January 2024.

29.  In the Notice of Appeal and the applicant’s written submissions, she did not rely on the lack of an oral hearing for the JR Application as a ground of appeal, nor did she therefore suggest how, if at all, the lack of an oral hearing in the court below had prejudiced or impacted in any way upon the fair determination of the JR Application.

30.  For the following reasons, we are of the view that despite the procedural irregularity, the present appeal falls to be dismissed by reason that it is wholly lacking in merits.

31.  The applicant has in the Notice of Appeal failed to identify, with sufficient particulars, errors on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

32.  In any event, in the application in the court below, the applicant provided no or no sufficient particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

33.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

34.  Moreover, we consider that the erroneous reference by the applicant (at [2] of her written submissions) to her home country as “Indonesia” rather than “Bangladesh”, in line with the Board’s findings on credibility, further diminishes the veracity of her claims of the apparent risks of harm if she was refouled to Bangladesh.

35.  Save the apparent procedural error by the Judge (which we have dealt with above), the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.  We have also subjected the Board’s Decision to anxious scrutiny and have found no reasonable basis for intervention.

36.  In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  The JR Application was unmeritorious, and we would have refused leave for the applicant to apply for judicial review.  The JR Application was rightly dismissed.

37.  For the above reasons, there is no merit in the appeal and we dismiss the appeal accordingly.