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CACV 317/2023, [2024] HKCA 1089
On appeal from [2023] HKCFI 2486
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 317 OF 2023
(ON APPEAL FROM HCAL NO 975 OF 2019)
________________________
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BETWEEN
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Akter Suntana |
Applicant |
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and |
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Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
________________________
| Before: |
Hon Kwan VP and Barma JA in Court |
| Date of Judgment: |
22 November 2024 |
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. On 10 October 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 16 October 2023.
2. The applicant is a national of Bangladesh. She last arrived in Hong Kong to work as a foreign domestic helper on 10 March 2015. Her employment contract was prematurely terminated on 18 March 2015. She did not leave Hong Kong and subsequently overstayed. She surrendered to the Immigration Department on 11 May 2017 and lodge a non-refoulement claim on 11 August 2017. Her claim was made on the basis that she will be harmed or killed by her estranged husband who was one of the leaders of the Bangladesh Chhatra League (“BCL”) and the Jubo League (“JL”), as the applicant was a member of Jatiotabadi Chatra Dal, the student wing of Bangladesh Nationalist Party (“BNP”).
The Director’s decision
3. By a Notice of Decision dated 8 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. The Director assessed that the level of risk of harm upon the applicant’s return to Bangladesh is low. The Director noted that the applicant had stopped working for BNP and has not received any harassments from BCL and JL of Awami League after marriage. She has not suffered any physical harm but only verbal threats from her husband since the birth of her son in 2012. The Director also considered the dispute between the applicant and her husband a private dispute and there is no evidence to show that any other members, supporters and officials of BCL, JL or Awami League really wanted to harm or kill the applicant. The Director did not accept that the alleged risk of harm is real and foreseeable. Moreover, the Director held that the availability of state protection and internal relocation alternatives in Bangladesh further lowers or negates the perceived risk.
The Board’s decision
5. The applicant’s appeal against the Director’s decision was heard by the Board on 27 November 2018 and she attended in person. As the applicant’s evidence is inconsistent and lacking in detail, the Board considered that she is not a truthful witness. The applicant stated that her fears of returning to Bangladesh have nothing to do with politics but are due to her husband. The Board was not persuaded that she has provided a truthful account of the events that led to her departure from Bangladesh or of her fears of returning. The Board found that the applicant does not face a real chance of harm at present and in the reasonably foreseeable future from members of the Awami Legaue, her husband or any other persons in Bangladesh. Thus, the Board concluded that the applicant failed to establish her claim on all applicable grounds and rejected the appeal on 21 February 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 10 April 2019 to seek leave to apply for judicial review against the decision of the Board. The grounds of her intended judicial review may be summarised as follows:
(1) Misdirection in law: The adjudicator misdirected himself in law by taking into account the applicant’s previous experience of being tortured in order to establish substantial grounds to believe that there was a risk of torture in future.
(2) Procedural impropriety/unfairness: The applicant was not legally represented and the hearing bundle was given to her shortly before the hearing before the Board. Therefore, she was unable to make full preparation for the hearing. She was confused at the hearing. Nonetheless, she had answered all the questions with honesty. The Board relied on the source of news which is not officially recognized or is simply hearsay. It had relied on some cases which are fairly outdated, and made groundless speculation that it is safe for her to return to her country of origin. The Board failed to call for psychological and psychiatric evaluations and reports. It has also applied the incorrect standard of proof.
(3) Irrationality: The Board had failed to evaluate whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. It also failed to assess whether state protection exists in Bangladesh. The Board had taken into account and put weight on irrelevant or incorrect considerations, but failed to take into account highly relevant information.
The judge’s decision
7. The applicant attended the hearing of the leave application before DHCJ K W Lung on 6 February 2023. The judge found that the applicant’s grounds for judicial review were clearly copied from templates of other cases not relevant to hers. The applicant admitted that someone else prepared the statement for her. The judge held there is no evidence to show that the Board had made misdirection in law, or that there were any procedural irregularities or irrationality. The judge decided that the applicant failed to show any realistic prospect of success in her intended judicial review. Thus, the leave application was refused on 10 October 2023.
Grounds of appeal
8. The applicant stated the following grounds of appeal in her Notice of Appeal:
(1) The Board did not consider her claim. The Board dismissed her appeal because her credibility was seriously in doubt and her evidence unreliable. The Board actually did not want to grant her claim and did not like her evidence.
(2) She had hoped that the court would consider her leave application but unfortunately it did not.
9. The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 16 October 2023 requiring the applicant to lodge written submissions. The applicant lodged written submissions as directed. In her written submissions, she reiterated the problems she faced in Bangladesh and contended that the Director and the Board made many mistakes but the court did not agree with her arguments and did not find any mistake.
Legal Principles
10. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
11. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis and disposition
12. The judge has duly considered the applicant’s grounds for her intended judicial review and given detailed explanation for rejecting them in the decision given on 10 October 2023. The applicant failed to identify any mistake in the judge’s decision or to put forward viable argument to refute the judge’s decision. It has not been demonstrated that the judge had made errors of law or failed to take into account relevant matters or was otherwise plainly wrong. There is no basis to reverse the judge’s decision.
13. As the appeal is devoid of merit, we dismiss it accordingly.
(Susan Kwan)
Vice President
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(Aarif Barma)
Justice of Appeal
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The Applicant (Appellant), acting in person
[1] [2023] HKCFI 2486
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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