RE KAZI AFSAR UDDIN AHMED AND OTHERS

CACV 87/2023, [2023] HKCA 751

On Appeal From [2023] HKCFI 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2023

(ON APPEAL FROM HCAL NO 2712 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the judgment of the Court):

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge To (“the Deputy Judge”)  set out in the Form CALL-1 dated 9 March 2023, by which the Deputy Judge dismissed their application for leave to apply for judicial review (“the Leave Decision”)  ([2023] HKCFI 742).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 29 August 2019 (“the Board’s Decision”), dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 31 January 2018 rejecting the applicants’ non-refoulement claim.

Background

3.  The 1^st applicant is a Bangladeshi national and the 2^nd and 3^rd applicants are Indonesian nationals[1]. The 1^st applicant is the 2^nd applicant’s husband and the 3^rd applicant is their daughter.  For convenience, we will refer to the 1^st applicant as “the Father”, the 2^nd applicant “the Mother”, and the 3^rd applicant “the Daughter”.

4.  The Father came to Hong Kong on 25 November 2005 on the strength of his passport and was arrested for overstaying on 30 December 2005.  The Mother came to Hong Kong to work as a domestic helper on 13 November 2006 and overstayed after her contract was prematurely terminated.  They gave birth to the Daughter on 5 December 2009 in Hong Kong.

5.  All three applicants had previously filed torture claims under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment which were rejected by the Director and the then Petition Team and of which leave to apply for judicial review against those Petition Team decisions were dismissed in 2012.

6.  On 12 April 2013, the applicants made a joint claim for non-refoulement protection by way of written representations dated 12 April 2013.

7.  In essence, the Father claimed for non-refoulement protection on the basis that he would be harmed or even killed by a group of rival Bangladesh Nationalist Party (“BNP”)  politicians because he was the President of Chhatra League, Bongaon Union which is a student union of the Awami League (“AL”)  and that he had an argument with Abul Khayer, the chairman of Chhatra Dal of BNP.  The Mother claimed for non-refoulement protection on the basis that she would be harmed or killed by her parental family, in particular, her elder brother because she refused their arranged marriage and later married a Bangladeshi man without their consent.  The Daughter’s claim for non-refoulement protection was founded on the same basis as the Mother’s. Factual details of their claim were summarised by the Deputy Judge at [1] - [16] of the Leave Decision.

8.  By a Notice of Decision dated 31 January 2018, the Director rejected the applicants’ non-refoulement claim.  His decision covered all applicable grounds other than torture risk[2], namely BOR2 risk[3], BOR3 risk[4] and persecution risk[5].

9.  The applicants then appealed against the Director’s Decision to the Board.  On 17 May 2019, the applicants attended an oral hearing before the Board.

10.  In essence, the Board found that there were numerous inconsistencies in the Father’s evidence and found his evidence incredible.  The Board considered his alleged fear speculative and that he had fabricated his claim in order to extend his stay in Hong Kong.  On the basis of the Country of Origin Information (“COI”), the Board also found that the Father could avoid the threats by relocating to other areas of Bangladesh.

11.  As to the Mother, the Board also found significant inconsistencies with her evidence which casted doubt on the veracity of her case.  There was also no medical evidence as to her claimed injuries and even on her own evidence she had not contacted her family since 2012.  The Board found that the Mother was not a credible witness and had fabricated her claims in order to extend her stay in Hong Kong.  The Board thus rejected her evidence and found that she and her daughter would not face a real risk of any harm from her family, the community, the police or the Indonesian authorities or anyone else for any reason if they were to return to Indonesia now or in the reasonably foreseeable future.

12.  Moreover, the Board found there was no independent evidence to indicate that the applicants would face a real risk of harm from the Mother’s family or discrimination from the community, the state or anyone in Indonesia by reason of the Father and Mother’s mixed marriage, the Father’s Bangladeshi nationality, and the Daughter being a mixed-race child, if they were to go to live in Indonesia. It is also the Mother’s evidence that the Father could join her to reside in Indonesia, if she and the Daughter were to be returned there.  The Board further found that internal relocation would be available to the Mother in Indonesia.

13.  As to the Daughter, the Board noted that she did not advance any independent or child-specific case on her own and that her claim stood or fell with the Mother’s or the Father’s claim.  After considering all the evidence, the Board thus found that the applicants had failed to prove the factual basis to support their claims under all applicable grounds and dismissed their appeals.

The Leave Decision

14.  On 17 September 2019, the Father filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was stated in the Form 86.  In the supplementary sheet of the supporting affirmation, the Father complained that there had been procedural impropriety, irrationality and error of law in the Board’s Decision on the basis that the Board had failed to conduct sufficient inquiry into the relevant COI, to consider their fear properly and the concept of state acquiescence and to properly assess the BOR3 risk.  The Deputy Judge later also granted leave for the Mother and Daughter to be joined respectively as the 2^nd and 3^rd applicants in the Father’s application for leave to apply for judicial review.

15.  As the Daughter is a minor, the Father had been advised by letter of the court dated 4 January 2022 to seek legal representation whether by the Director of Legal Aid or private solicitors.  The Father applied for legal aid for the Daughter on 1 April 2022, but the application was refused by the Legal Aid Department on 17 June 2022.

16.  On 13 February 2023, the applicants, acting in person, attended an oral hearing before the Deputy Judge.  A Bengali interpreter and an Indonesian interpreter were present to provide language assistance.

17.  By the Leave Decision, the Deputy Judge refused the applicants’ application for leave to apply for judicial review.  His reasons were set out in detail at [27] - [43] of the Leave Decision.  In essence, the Deputy Judge found no substance in the grounds as advanced by the applicants.  The applicants failed to particularise the COI into which they said the Board had failed to make inquiry while the Board had already considered their claims after detailed analysis of their evidence.  As to the applicants’ complaints about the Board’s finding of facts, those were equally without substance.  Regarding the Daughter’s complaints in relation to her alleged language disability and her nationality, the Deputy Judge noted that these grounds were not raised before the Board and in any event, had no substance.  Accordingly, the Deputy Judge dismissed their applications for leave to apply for judicial review.

The Appeal

18.  On 21 March 2023, the applicants filed a Notice of Appeal in support of their appeal against the Leave Decision.  In the Notice of Appeal, the applicants stated:

“1. Failure to consider the fact that I raised in my claim that I and my family would not returned my country.

2. Failure to consider the facts that I and my family will be at risk upon refoulement.

3. Failure to consider my fears and consider BOR 2 and BOR 3 still.” (sic)

19.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 April 2023, the applicants also lodged written submissions in support of their present application on 8 May 2023.  In those submissions, the applicants alleged that they could not go back to their respective own home country due to risk of harm and that it would be difficult to settle or survive in Bangladesh given the Father’s claim was purely a political matter.  The applicants also asserted that as the daughter was born in Hong Kong, she is neither a Bangladeshi or Indonesian national, and as she has been growing up here in Hong Kong and continuing her studies here, it would be hard for her to survive as the applicants would be facing terrible risk upon refoulement.  The applicants further claimed that their problem was not a personal or private one but one that was political in nature and that the situation was worse in the Father’s home country and it would be hard for them to survive upon refoulement.  The applicants further asserted that the Deputy Judge did not conduct proper inquiry into their fear, in particular, the COI showed that the state would not be able to protect them from their enemies.

Discussion

20.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

21.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

22.  In relation to non-refoulement claims made by or on behalf of a minor, the court’s approach is set out in Re Jasvir Singh [2021] HKCA 53 at [30] - [33] and Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 971.

23.  Applying the above legal principles, there is plainly no merit in the applicants’ appeal.

24.  At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence.  General assertions of their fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  Further, most of the present complaints are related to the Board’s Decision but not the Leave Decision.  These are not proper grounds of appeal. The assertion that the Deputy Judge had failed to conduct a proper inquiry is similarly vague and lack of particularities, and cannot amount to a proper ground of appeal.

25.  In any event, it is also worthy to note that their claims were dismissed by the Board mainly on the basis that the Board found the Father and Mother to have fabricated their claims and were not credible witnesses.  The Board had carefully considered all the evidence and relevant COI before finding that the applicants had failed to prove they had any genuine fear of harm or risk of harm from the Father’s alleged enemies in Bangladesh if refouled to Bangladesh or the Mother’s family and her elder brother’s friend she was supposed to marry, the community, the state, the police or anyone in Indonesia.  Furthermore, the Board had also carefully analysed both the BOR2 and BOR3 risks on the evidence and grounds raised by the applicants: see [214] - [229] of the Board’s Decision.  Accordingly, there is plainly no substance in the applicant’s grounds of appeal.

26.  Moreover, as repeatedly emphasised by this court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Deputy Judge was correct not to intervene by way of judicial review on this allegation where there are no errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

27.  As to the Daughter’s appeal, both the Deputy Judge and the Board had plainly considered her claim separately as required by the law.  The Board rejected her claim on the basis that the underlying factual allegations were not established and that there were no other child specific claims that could be advanced.  See eg, [191], [208] - [213] of the Board’s Decision.  The Deputy Judge was therefore correct to find no public law errors committed by the Board.

28.  As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  We are satisfied that this is the situation in respect of the Daughter’s claim in the present case.

29.  As to the allegation their Daughter would have no Bangladesh or Indonesia nationality (a matter not raised before the Board), the Deputy Judge had specifically dealt with it and rejected it at [42] of the Leave Decision.  The applicants have failed to show why his reasons are wrong. There is also no merit in this ground of appeal.

30.  At the hearing, the Father further submitted that he is suffering from serious kidney disease and needs to attend renal dialysis four times a day in Hong Kong.  He therefore could not go back to Bangladesh or go to Indonesia.  He also emphasized that his main concern is about the Daughter who was born and has been brought up and having education in Hong Kong.  The Mother also submitted that her husband is very ill and they need to stay together in Hong Kong for him to receive medical treatment and for the Daughter to continue to receive her education here.  The Daughter asked the court to allow them to stay in Hong Kong as the Father is very sick with the kidney disease.  She also said she has been brought up in Hong Kong and only knows Cantonese and English but not Indonesian and Bengali, therefore she cannot go to live in Indonesia or Bangladesh.

31.  For the same reasons we have explained above, all these latest submissions, including the Father’s alleged serious kidney illness, do not amount to proper grounds of appeal against the Leave Decision. In particular, the allegation of the Father’s serious illness is a new matter which was not advanced before the Deputy Judge.  It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

32.  All in all, the applicants have failed to substantiate any alleged error of the Deputy Judge in the Leave Decision.  We agree with the Deputy Judge that there was no error of law, procedural unfairness or irrationality in the Board’s Decision.

33.  For the above reasons, the appeal has no merit and we dismiss it.

34.  For the avoidance of doubt, we shall treat the Daughter’s lack of legal representation as an irregularity without rendering the proceedings a nullity.