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LAELA MOSHAMMAD RUNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2022] HKCA 832-EN-2022-06-17

LAELA MOSHAMMAD RUNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 457/2021

[2022] HKCA 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 457 OF 2021

(ON APPEAL FROM HCAL NO 2314 OF 2020)

________________________

BETWEEN
	Laela Moshammad Runa	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan Ag CJHC and Yuen JA in Court

Date of Written Submission: 17 January 2022

Date of Judgment: 17 June 2022

________________________

J U D G M E N T

________________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 24 December 2021 ([2021] HKCA 1923). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge P Li dated 28 September 2021 ([2021] HKCFI 2863) refusing to grant extension of time for her to apply for leave to seek judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 5 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 17 January 2022. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Bangladesh. She last arrived in Hong Kong on 6 September 2014 as a foreign domestic helper. After her employment contract was prematurely terminated on 18 May 2015, she did not depart within the time limit and had overstayed. On 21 March 2016, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 9 December 2016 on the basis that she would be harmed or killed by her husband because she refused to transfer the family asset to him and to join him in the Awami League.

4. She filed a Form 86 on 24 November 2020 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) out of time. On 1 April 2021, her application to withdraw her leave application was allowed by DHCJ P Li.

5. On 21 June 2021, the applicant wrote to the court requesting to reinstate her leave application. The reinstatement application was allowed by the judge. In respect of the leave application, the judge considered that the applicant failed to show she has a reasonable chance of success in her proposed judicial review and on 28 September 2021 refused to grant her extension of time to bring the leave application.

6. The applicant filed a Notice of Appeal on 30 September 2021. The appeal was dismissed by the Court of Appeal on 24 December 2021. She filed a Notice of Motion on 5 January 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7. The applicant stated the following grounds of appeal in her Notice of Motion:

(1)  She does not agree with the Court of Appeal’s decision on 24 December 2021 because the court only relied on simple hearsay.
(2)  The decision made her irrational and disappointed her.
(3)  The decision was unfair. The judge may not have analysed her appeal and did not scrutinize her problem in her home country.

8. The further contentions in her written submissions may be summarised as follows:

(1)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”).
(2)  The judge reviewed the matter lightly while high standards of fairness are required in the determination of torture claims.
(3)  The judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the Director and the Board whereby they were required to give reasons to justify their decisions.
(4)  The applicant’s problems are very severe in her home country and she has submitted all the proofs of her torture claim but the judge did not apply greater care in considering the evidence adduced.
(5)  The judgment of the Court of First Instance was wrong. The judge did not scrutinize the matter for the extension of time to appeal.
(6)  The Board failed to give sufficient chance for the applicant to arrange for relevant evidence for her non-refoulement claim and her appeal.
(7)  The applicant will face hardship and will be killed by her enemy if she returns to her home country. The Board significantly relied on source of news which is not officially recognized or is simply hearsay.
(8)  The political situation in Bangladesh does not provide support to save her life. She cannot get help from the Bangladeshi police or authorities.

Analysis and disposition

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant’s grounds and submissions are not supported by evidence. In particular, she has not provided sufficient elaboration or evidence to show how the Court of Appeal’s decision failed to apply the relevant principles, and what hearsay evidence had the court relied on. She has failed to identify any unfairness in the decision and what issues in her appeal were not analysed by the court. While complaining that she was not given sufficient chance to arrange for relevant evidence previously, she has still failed to adduce evidence to the court in her appeal and her present application to substantiate her case. She still requests for further time to submit new documents to the court in her written submissions after more than five years since the lodging of her non-refoulement claim. In the absence of any explanation for the previous failure to obtain necessary evidence, it is not accepted that the applicant can obtain any credible evidence to support her application if further time is given.

11. Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12. For the above reasons, we refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 5 January 2022.

(Susan Kwan)
Acting Chief Judge of the
High Court

(Maria Yuen)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 457/2021

[2021] HKCA 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 457 OF 2021

(ON APPEAL FROM HCAL NO 2314 OF 2020)

________________________

BETWEEN
	Laela Moshammad Runa	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Hearing: 13 December 2021

Date of Judgment: 24 December 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is an appeal against the decision of Deputy High Court Judge P Li on 28 September 2021[1] (“the Judge’s Decision”) refusing to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim dated 7 May 2020 (“the Board’s Decision”).

2. The applicant is a national of Bangladesh of 36 years old. She last arrived in Hong Kong on 6 September 2014 as a foreign domestic helper. However, after her employment contract was prematurely terminated on 18 May 2015, she did not depart within the time limit and had overstayed. On 21 March 2016, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 9 December 2016. Her claim was made on the basis that she would be harmed or killed by her husband because she refused to transfer the family asset to him and to join him in the Awami League (“AL”).

The Director’s decision

3. By a Notice of Decision dated 17 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds, being torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5].

4. The Director considered there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged. The Director found that the applicant’s husband had no real intention to kill her and there was no evidence indicating the involvement of AL or the state in their private dispute. The Director also considered that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk. Thus, the non-refoulement application was rejected by the Director.

The Board’s Decision

5. The hearing of the appeal against the Director’s decision was conducted before the Board on 13 January 2020. As the applicant refused to answer most of the questions, the Board explained to her its duty to seek clarification of her evidence even though she had the right not to answer the questions. The Board found her evidence on the material aspects of her claim unrealistic and illogical and considered her testimony unreliable and incredible. It further found that the alleged injuries the applicant sustained as a result of her husband’s constant assaults were not too serious to warrant the fear she claimed of being harmed or killed if refouled. In any event, state protection was available to the applicant and she could consider relocating to other cities in Bangladesh, such as Dhaka, upon refoulement. The Board therefore rejected her appeal.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 24 November 2020 to seek leave to apply for judicial review against the Board’s Decision. On 22 March 2021, she filed another affirmation to the court, seeking to withdraw her leave application. By an order dated 1 April 2021, DHCJ P Li granted the withdrawal of the applicant’s leave application.

7. Thereafter, on 21 June 2021, the applicant wrote to the court requesting to reinstate her leave application. She explained that the reason for the withdrawal was because her family was trying to solve her problem in her home country. However, the efforts were in vain and hence her application for reinstatement.

8. On 22 June 2021, the judge directed that the reinstatement application be dealt with together with the applicant’s leave application.

The Judge’s Decision

9. The judge heard the applications on 2 August 2021. At the hearing, the applicant elaborated on her reasons for reinstatement. Whilst having grave doubts, the judge granted her the reinstatement and considered her leave application. He found that the applicant’s delay of more than 3 months was significant and she offered no cogent explanation for the delay. He proceeded to consider the merits of her intended application and her major complaints. He held that the Board had analysed the evidence in great detail and he agreed with the Board there were critical inconsistences that undermined the applicant’s credibility and there was no error of law or procedure. As a result, the applicant failed to show she has reasonable chance of success in her proposed judicial review. Hence, the judge refused to grant her extension of time to bring the leave application.

Grounds of appeal

10. The applicant filed a Notice of Appeal against the Judge’s Decision on 30 September 2021. In her Notice of Appeal, the applicant argued that she would face hardship if refouled. She also contended that the Board had relied on hearsay evidence and outdated information.

11. The contentions in her submissions in writing may be summarized as follows:

(1)     The judge failed to apply the principle of irrationality when assessing the Board’s Decision;
(2)     The judge failed to apply the principle of procedural fairness when assessing the Board’s Decision;
(3)     The judge failed to apply greater care when assessing the applicant’s evidence;
(4)     The judgment of “the applicant’ Summon of the court of first instance” was wrong;
(5)     The Board failed to give sufficient chance for the applicant to arrange for relevant evidence in support of her non-refoulement claim;
(6)     The Board relied on information that was not officially recognized or was hearsay.

Legal Principles

12. 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.

13. An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for repeating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

14. 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

15. The applicant’s grounds in her Notice of Appeal do not constitute viable grounds of appeal against the Judge’s Decision. She simply repeated the arguments that were raised and rejected by the judge.

16. As for the contentions in her submissions in writing, they are just bare assertions without particulars or evidence in support. Contrary to the applicant’s assertions, it can be seen from §§18, 26 to 28 of Judge’s Decision that the judge had scrutinized the Board’s Decision in light of the applicant’s grounds of review. He concluded that the Board did not violate the principle of irrationality or procedural unfairness and that it had adhered to a high standard of fairness. The applicant failed to give any particulars or elaboration to demonstrate 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.

17. For the above reasons, there is no prospect of success in the intended application for judicial review and no merit in the appeal. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2021] HKCFI 2863

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] 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.

[4] 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.

[5] 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.