RE AKTHER MST RAMA

CACV 87/2022

[2022] HKCA 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2022

(ON APPEAL FROM HCAL 538 OF 2019)

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Before:  Hon Chu JA and B Chu J in Court

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court):

1.  On 20 July 2022, this court handed down a judgment ([2022] HKCA 1025) dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 15 February 2022 refusing her application for leave to apply for judicial review.

2.  On 2 August 2022, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal. She has also put in written submissions to support the application (“Written Submissions”).

3.  Having considered the Notice of Motion and the Written Submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that leave to appeal to the Court of Final Appeal may be granted if 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.

6.  The applicant stated the following (insofar as we can make out) in the Notice of Motion:

“Failing to consider the fact I had raised in my claim which was assessed under torture risk, BOR 2 and 3 risk and persecution risk, the TCAB (Torture Claims Appeal Board) and the Director did [not ] show fair standard to assessed (sic) my claim above law, specially my claim would be under BOR 3 risk that I would face real risk by my enemies. The assessor simply assessed my claim, that my fear is low and I would not be harm or face any risk, but its absolutely wrong assessment. My fear is genuine and still continue threats for my by my enemies.”

7.  In her Written Submission, the applicant argued amongst other things that:

(1)  The TCAB and the Director failed to take into account and/or give proper weight to relevant considerations and materials rendering their decisions illegal and specifically:

(a)  the Judges did not follow the high standard of fairness and the assessor did not conduct inquiry into her fear and that her enemies were still threatening her and the country of origin conditions information clearly showed that the authority of her country of origin would not be able or have no intention to protect her from her enemies;

(b)  her claim was based on a true story of her life and that the decision maker did not observe her fear well and the assessor simply refused her claim and stated her claim was not established;

(2)  Her claim was not a private and personal matter and that the decision maker did not have proper regard for her fear;

(3)  the Judges made decision and supported the TCAB decision and did not focus on her fear that her life would be in danger.

8.  What was stated by the applicant in the Notice of Motion and Written Submission relate solely to the circumstances and facts of her claim. No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified. Further, for the reasons we gave in [14] to [18] of our judgment, the matters put forward by the applicant in this application are unarguable. We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

9.  As the statutory requirements for giving leave to appeal are not met, the Notice of Motion is dismissed.

The Applicant, unrepresented, acting in person.

CACV 87/2022

[2022] HKCA 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2022

(ON APPEAL FROM HCAL 538 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon B Chu J (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 15 February 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 470).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Bangladesh.  She first arrived on 12 February 2014 in Hong Kong to work as domestic helper. She last arrived in Hong Kong on 27 February 2015 and was permitted to remain for employment as a domestic helper until 27 February 2017 or two weeks after termination of contract, whichever was earlier.  Her employment contract was prematurely terminated on 19 September 2015 and she did not depart within two weeks after termination of contract and overstayed in Hong Kong since 4 October 2015. 

4.  On 4 May 2016, she surrendered to the Immigration Department.  On 7 July 2016, she lodged a non-refoulement claim on the basis that she would be harmed or killed by her husband who was a leader of Awami League (“AL”) because she was a supporter of Jamaat-e-Islami Party and refused her husband’s demand to join AL.  She also feared that she would be blackmailed by her husband for money with her nude photographs and videos in his mobile phone.  The factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [16] of the Leave Decision.

5.  By a Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

6.  On 3 October 2017, the Board received the applicant’s Notice of Appeal against the Director’s Decision. An oral hearing was held before the Board on 2 October 2018.  On 4 February 2019, the Board dismissed her appeal.  As summarised by the Deputy Judge at [17] to [22] of the Leave Decision, having considered the materials before it, the Board found the applicant’s evidence incredible and attached very little weight to it and found that she failed to substantiate her claim on all applicable grounds.  The Board also found that state protection and internal relocation alternatives would be available to the applicant.  Accordingly, the Board dismissed her appeal and confirmed the Director’s Decision. 

The Leave Decision

7.  On 25 February 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  As noted by the Deputy Judge at [24] to [28] of the Leave Decision, the applicant advanced the following grounds in her Form 86 and supporting affirmation:

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decision to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  misdirection on the law;

(6)  erroneous reliance on the COI; and

(7)  lack of legal and language assistance.

8.  On 25 January 2022, an oral hearing was held before the Deputy Judge and a Bengali interpreter was present to provide language assistance. 

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [29] to [54] of the Leave Decision.  In gist, the Deputy Judge found that there was no substance in all her grounds and that there was no error of law, procedural unfairness or irrationality in the Board’s Decision.  Her complaints as to the lack of legal and language assistance also had no merit and she had suffered no prejudice.

The Appeal

10.  On 22 February 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In her Notice of Appeal, she contended that the Director and the Board failed to comply with their duties to make sufficient inquiries into the Country of Origin conditions.  The applicant also complained that the Board failed to take into account relevant considerations or took into account irrelevant considerations, in that her life would be in danger and she would be threatened by her enemies, and that she was placed under severe mental distress and she had no protection from the authority.  She also contended that although her claim may be personal and private in nature, she would face a risk of harm when she returned to Bangladesh. 

11.  Pursuant to the directions given by the Registrar of Civil Appeals on 29 April 2022, the applicant filed two written submissions respectively on 6 May 2022 and 7 June 2022.  In those submissions, the applicant repeated the alleged factual basis of her non-refoulement claim and complained of the lack of language and legal assistance in relation to the proceedings before the Board.  She further complained that the Deputy Judge did not consider that she would face real risk upon her return to Bangladesh and failed to consider the Country of Origin conditions where there would be no justice for ordinary people.  The Deputy Judge also failed to consider her fear or that her enemies would still harm her. 

12.  We heard the appeal on 6 July 2022.  During the hearing, the applicant submitted and repeated that the risk she mentioned previously was still there and that the political situation in Bangladesh was very poor and as a member of opposition political party, she would be a victim. 

Discussion

13.  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].

14.  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 Deputy Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the Deputy 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.

15.  At the outset, it is noted that the matters raised in her Notice of Appeal are general and vague complaints directed at the Board in relation to the assessment of factual evidence and Country of Origin Information. As repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information 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 Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].  We agree with the observations of the Deputy Judge that there is no error of law, procedural unfairness or irrationality in the Board’s Decision.  Accordingly, there is no merit in her submissions and no basis to interfere with the Leave Decision. 

16.  In relation to the matters raised in her written submissions, they are equally without merit.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: see Cucun Fatimah v Torture Claims Appeal Board[2019] HKCA 1264 at [20].  She had the assistance of interpreters in the hearings both before the Board and in the Court below. The Court documents filed in this application and in the Court below were all in English. It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

17.  Further, it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11]; Re Tariq Farhan[2018] HKCA 17 at [11]; and Re Lopchan Subash[2018] HKCA 37 at [13]. 

18.  In any event, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, there is no merit in her appeal.

19.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

The applicant acting in person