RE AKTER NARGIS

CACV 390/2021

[2021] HKCA 1767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2021

(ON APPEAL FROM HCAL 677 OF 2020)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”)  on 11 August 2021 (“Judge’s Decision”)  refusing an extension of time to apply for leave to apply for judicial review and dismissing the application for leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 30 May 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of her non-refoulement claim (“NRF Claim”)  on 25 October 2017 (“Director’s Decision”).

2.  The applicant subsequently raised a new non-refoulement claim that was rejected by the Director on 28 April 2020, with the appeal to the Board dismissed on 2 September 2020.  We are not concerned with the screening of this later claim.  The Form 86 under HCAL 1339/2018, from which this appeal arose, was issued on 17 April 2020, predating the director’s denial of the applicant’s second claim for non-refoulement protection.

Basis and allegations in support of NRF Claim

3.  The basis of the NRF Claim made by the applicant, a national of Bangladesh, is a fear of being harmed or even killed by 2 persons named “Raju” and “Renu”.

4.  The circumstances allegedly giving rise to such fear were set out in detail in paragraph 14 of the Director’s Decision and in gist in paragraphs 11 to 13 of the Board’s Decision and [2] to [5] of the Judge’s Decision in the Form CALL-1 [2021] HKCFI 2358 (“Form CALL-1”).  Briefly:

(1)  The applicant and her family were active members of the Bangladesh Nationalist Party (“BNP”).

(2)  After the victory of the Awami League (“AL”)  at the general election in 2009, many conflicts between the respective supporters of the 2 parties ensued.

(3)  In June 2012, the applicant was abducted by AL supporters.  She was held captive and tortured daily by her kidnappers.

(4)  She was further drugged and raped by, and later forced to marry, Raju, a local AL leader who already had 3 wives.  Raju treated the applicant as his sex slave.  He even forced her to have an abortion after he impregnated her.

(5)  The applicant was eventually rescued by friends of her brother after 6 months in January 2013.

(6)  The applicant’s parents’ complaint to the Chittagong Kotwali Police Station was to no avail.

(7)  To avoid Raju, the applicant came to Hong Kong to work as a foreign domestic helper after undergoing training for 4 months in Dhaka without any mishap.

(8)  To pay the agency fee, the applicant borrowed 120,000 Taka from a bank.  Then, to finance the travel arrangement, she borrowed 330,000 Taka from Renu, an AL member and a loan shark.

(9)  After the applicant left Bangladesh, her family has told her that Raju never ceased to look for, and threaten to kill, her.

(10)  After she lost her job in Hong Kong, the applicant became unable to repay either the bank or Renu.  According to her mother, Renu also looked for, and threatened to kill, the applicant.

Overstay in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 28 January 2014.  Her employment as a foreign domestic helper was terminated prematurely on 26 June 2014.  She did not leave Hong Kong and overstayed since 11 July 2014.  She was arrested for overstaying on 22 December 2015[1].  She raised the NRF Claim by written representation dated 25 December 2014 and submitted a Non-Refoulement Claim Form dated 28 April 2017 (“NCF”).

Director’s Decision

6.  After considering the information provided by the applicant in the NCF, in her written answers to the Director’s “List of Questions” dated 11 September 2017 and at the screening interview on 23 October 2017, the Director found the NRF Claim unsubstantiated for torture risk[2], persecution risk[3], “BOR 2” risk[4] or “BOR 3” risk[5].

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board attempted to hold a rehearing of the NRF Claim on 4 May 2018 and 16 May 2019. The applicant attended the first hearing which was adjourned after she submitted medical evidence that she had been diagnosed with “mania with psychotic symptoms” and prescribed various anti-psychotic drugs.  The applicant failed to attend the second hearing after having jumped court bail on a charge of taking up unapproved employment.

8.  After considering the papers before it, the Board dismissed the appeal on all 4 grounds for non-refoulement protection.  Without questioning the applicant closely on what the Board considered to be key aspects of the NRF Claim, the Board was left with only a set of untested, broad and unparticularised assertions made by the applicant to the Director.  No credence could be attached to such assertions.

Application for leave for judicial review and Judge’s Decision

9.  The last day for the applicant to apply for judicial review of the Board’s Decision under Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A)  was 30 August 2019.  The Form 86 issued on 17 April 2020 was hence more than 7 months out of time.

10.  Further, neither the Form 86 nor the supporting affirmation stated any proposed ground for judicial review.

11.  Then, on 2 March 2021, the applicant filed an affirmation deposing that she would no longer face any threats from her enemies and that she wanted to return to her home country. She asked for withdrawal of the proceedings.

12.  As the applicant did not ask for a hearing, the Judge refused to extend time and dismissed the leave application on paper for the reasons set out in [15] to [22] of the Form CALL-1:

“15. In the Applicant’s case, a delay of more than 7 months must be considered as very substantial, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her serious delay.

16. As for the merits, if any, of the intended application, as noted above, the Applicant has not put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for or any merits in her intended application.

17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 in their decisions 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.

18. In the Applicant’s case, the Board rejected her claim on its findings of her failure to establish such claim for the thorough and detailed analysis and reasoning set out in paragraphs 22–48 of its decision, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19. The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. 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.

21. Furthermore, the Applicant on 2 March 2021 filed an affirmation requesting to withdraw her leave application, for which she subsequently confirmed in writing that she will have no more torture risk or threats from her enemy as mentioned in her claim and that she wants to return to her home country.

22.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, and given her latest confirmation that the basis for her claim no longer exists, I accede to her request and accordingly dismiss her leave application.”

Appeal to Court of Appeal - grounds of appeal & failure to file submission

13.  By the notice of appeal filed herein on 16 August 2021, the applicant appealed against the Judge’s Decision on the grounds (1) that she would face hardship if refouled to Bangladesh (“Ground 1”)  and (2) that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay source of news and outdated cases (“Ground 2”). 

14.  In breach of paragraph 3(1)  of the directions given by the Registrar of Civil Appeals on 2 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

15.  The hearing on 16 November 2021 was vacated, leaving us to deal with the appeal on paper on the material already filed with the court.

Discussion

16.  In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

17.  The applicant did not see fit to explain her substantial delay in issuing the Form 86.  Nor did she point to any error of law, procedural unfairness or irrationality in the Board’s Decision in the Form 86 or either of her affirmations to justify intervention by judicial review by the court: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  The application for judicial review of the Board’s Decision was hopeless so that both extension of time and leave for judicial review were rightly refused, not to mention that the applicant herself had asked for withdrawal of the proceedings.

18.  Further, neither of the purported grounds stated in the notice of appeal herein was raised before the Judge.  Nor are they, on any view, arguable.  

(1)  Ground 1 - The repeated assertion of risk of harm in Bangladesh is inconsistent with the applicant’s own earlier statement on affirmation to the Judge that she would no longer face threats from her enemies in Bangladesh and request for withdrawal of the proceedings.  In the absence of a credible explanation for this change of position, no credence could be accorded to the applicant’s current assertion of fear of harm.

(2)  Ground 2 - In an appeal against a refusal of leave to apply for judicial review, the Court of Appeal is concerned with the decision of the judge at first instance.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)].  This court will not entertain a complaint about the Board’s Decision, especially one that had not been raised before the Judge.

We cannot discern any 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 plainly wrong.

19.  In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

20.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.