CACV 207/2018
[2018] HKCA 780
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 207 OF 2018
(ON APPEAL FROM HCAL 988/2017)
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| RE: | TANCHANGYA NABONITA | Applicant |
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| Before: Hon Barma JA and Anthony Chan J in Court |
| Date of Hearing: 23 October 2018 |
| Date of Handing Down Judgment: 30 October 2018 |
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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 Bruno Chan given on 1 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the 2 decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 1 December 2016 and 4 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. She entered Hong Kong on 26 October 2013 to work as a foreign domestic helper and was permitted to remain until 26 October 2015 or within 14 days of its early termination. Her employment was terminated on 4 September 2014 but she did not leave within 14 days. She was arrested by the police on 22 September 2014 for overstaying. After her arrest, she lodged a non-refoulement claim on 1 October 2014.
3. The applicant’s claim was based on threats from members of a group called Shetelor Bengalis. The applicant claims to be a member of Jono Shoghoti Shamity (“JSS”) which aimed to help female victims of sexual or violent abuses inflicted on them by the Shetelor Bengalis. In 2010, members of Shetelor Bengalis threatened to harm the applicant and her family unless she quit from JSS. The details of the applicant’s claim had been summarised by the judge at [2] to [7] of the CALL-1 Form.
4. By a Notice of Decision dated 17 August 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 21 July 2016 and 31 August 2016, the Board found that the applicant’s case was not credible ([64] of the Board’s Decision) and dismissed the appeal on 1 December 2016 (“Board’s Decision”).
6. By a Notice of Further Decision dated 7 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against her.
7. The applicant again appealed to the Board. On 25 August 2017, the Board held a hearing where the applicant confirmed she had no further information on BOR 2 risk to submit. On 4 September 2017, the Board dismissed her appeal.
The deputy judge’s decision
8. The applicant filed a Form 86 on 1 December 2017 which contained no ground for seeking relief.
9. In the affirmation in support of the leave application dated 1 December 2017, the applicant advanced various grounds for judicial review which are summarised below:
(1) failure on the part of the Board to properly understand the new problems caused by Rohingya Muslims fleeing from Myanmar into her home country;
(2) failure on the part of the Board to make proper inquiry into Country of Origin Information (“COI”) regarding the problems caused by Rohingya Muslims in Bangladesh;
(3) failure on the part of the Board to properly consider the risk of harms that she would face upon her return to Bangladesh;
(4) failure on the part of the Director to provide her with more opportunity to submit additional facts regarding BOR 2 risk and to make proper inquiry into COI relevant to her claim; and
(5) failure on the part of the Director and the Board to properly consider her claim.
10. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 15 to 19 of the CALL-1 form:
“15. These are all very broad and vague assertions of the applicant without any particulars or specifics as to how they applied to her case, or how the Director or the Board had erred in their decisions, or in what ways were the recent plight of the Rohingya Muslims relevant to the applicant’s situation in Bangladesh, as the Board clearly found in its further decision that the applicant’s assertion that Rohingya Muslims are forcibly occupying land in Bangladesh which belongs to the Tanchangya people is not supported by any COI reports, and that it is the applicant’s own case that she has never personally encountered any Rohingya Muslims in the past, nor has she had any negative experience at the hands of the Rohingya Muslims in Bangladesh.
16. Furthermore, as held by the Court of Appeal, even the existence of consistent pattern of gross, flagrant or massive violation of human rights in the home country per se would not constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013, and Gallolu Kankanamalage Nimal Perera v Director of Immigration Petition Team CACV 215/2012, 23 September 2013.
17. Given the fact that the applicant’s claim was rejected essentially on her credibility for the detailed reasons set out in paragraphs 58 – 75 of the Board’s decision including detailed analysis of those photographs of her village produced by the applicant, any attempt to challenge the Board’s reliance of COI to assess the situations in Bangladesh including the impacts of the Rohingya Muslims appear to me futile and pointless, and that it is well established principle that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against her on the core of her claim that she was a member of JSS or the person in charge of the office in Antapara and in particular that she was personally targeted by the Shetelor Bengalis, I do not find any basis or merits in any of these grounds of the applicant.
18. In the premises and having proceeded to consider 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.
19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”
Grounds for appeal
11. In the Notice of Appeal dated 7 June 2018 the applicant advanced a number of grounds of appeal, which can be summarised as follows:
(1) failure to assess the persecution risk when there was conflict between the state government and the tribal group to which she belongs;
(2) failure to consider the COI concerning the risk to her and her family caused by the Bengali people and the new threat from Rohingya Muslims;
(3) failure to consider the evidence, including the photos submitted by the applicant; and
(4) failure to consider her claim under persecution risk and BOR 3 risk in light of the government’s involvement and that her life will be in danger upon refoulement.
12. In her skeleton submissions dated 21 September 2018, the applicant submitted that the Board and the Director failed to make sufficient inquiries into the COI. They discharged their burden of proof under Prabakar[5] passively. They failed to give due regard to:
(1) the fact that the applicant was placed in mortal danger by the assailants;
(2) the fact that she received death threats from the local Bengalis Shetelor; and
(3) the fact that she has been placed in severe mental distress.
13. The applicant agreed by a letter of 7 June 2018 that the appeal can be heard by two judges. We heard the appeal on 23 October 2018.
Discussion
14. The ground concerning the evidence (including the photos) submitted by the applicant was not advanced at the Court of First Instance and is raised for the first time well outside the time limit for judicial review. The applicant has failed to show any good reason why she should be allowed to rely on this ground (see Re Nupur Mst[2018] HKCA 524, CAMP 524/2018 at §14(4)).
15. As for the other grounds in the notice of appeal and the skeleton submissions, the judge had dealt with the matters raised in those grounds sufficiently in his decision. The applicant failed to identify any error in the judge’s analysis. We would dismiss these grounds of appeal as well.
16. Lastly, we note that the grounds raised in the skeleton submissions are directed towards the alleged error committed by the Board and the Director. They are not directed at any error of the judge. After rigorous examination and anxious scrutiny, the judge concluded at [18] of CALL-1 form that he could not find any error of law or procedural unfairness in their decisions. These grounds have no merit.
17. There is no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) | (Anthony Chan) |
| Justice of Appeal | Judge of the
Court of First Instance |
The applicant acting in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.
[2] 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of the Hong Kong Bill of Rights.
[5]Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187