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CAMP 54/2018
[2018] HKCA 524
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 54 OF 2018
(ON AN INTENDED APPEAL FROM HCAL 430/2017)
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| BETWEEN |
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| NUPUR MST |
Applicant |
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| DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Lam VP and Barma JA in Court
Date of Hearing: 14 August 2018
Date of Judgment: 16 August 2018
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. By a summons filed by the applicant on 3 May 2018, the applicant seeks an extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 11 April 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 23 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 18 April 2016 and 10 March 2017 respectively rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. She entered Hong Kong on 26 October 2013 and was permitted to work as a domestic helper. Her permission allowed her to remain until 26 October 2015, or 2 weeks after the termination of her employment contract, whichever the earlier. Her employment contract was terminated prematurely on 5 July 2014, and accordingly she should have departed Hong Kong on or before 19 July 2014. She did not do so, but instead overstayed. She was later arrested by the police on 22 September 2015. After her arrest, she lodged two non-refoulement claims on 26 September 2015 and 23 October 2015 respectively.
3. The applicant’s claim was based on her fear that, if she returned to Bangladesh, she, being a member of the Bangladesh Nationalist Party (“BNP”), would be harmed, or even killed, by the members of its political rival, the Awami League (“AL”).
4. By a Notice of Decision dated 18 April 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim. The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].
5. By a Notice of Further Decision dated 10 March 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against her.
6. The applicant appealed to the Torture Claims Appeal Board. A hearing was scheduled on 15 June 2017. However, the applicant did not appear after the board had waited for more than 90 minutes. The applicant later explained that she had a headache that morning and she got stranded. The board did not accept the explanation and decided to determine the appeal in her absence.
7. The board rejected the applicant’s appeal by its decision dated 23 June 2017 (“the Board’s Decision”). The board found that the applicant’s case was based on unsupported assertions, speculation and unreliable evidence. It took the view that the AL members no longer had any reason to continue to find and harass the applicant. Furthermore, the AL members acted in their personal and private capacity without the involvement of the state. The applicant was able to stay with her friend and to look for an overseas job without encountering any problem with the AL members. The board was also satisfied at [29] that state protection was available for the applicant and at [32] that internal relocation was viable. Accordingly, the applicant’s appeal was dismissed.
The deputy judge’s decision
8. The applicant filed a form 86 on 20 July 2017. The form 86 contained no ground for seeking relief. In the affirmation in support of the leave application dated the same date, the applicant advanced the following:
(a) The board did not give her sufficient time for her to submit supporting documents;
(b) The applicant also referred to the death certificate of her late husband, and claimed the said death certificate stated that her late husband was killed by a person unknown.
9. The application for leave to apply for judicial review was listed for hearing on 15 December 2017. The applicant did not attend the hearing. The judge decided to deal with the application on paper.
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 gave the following reasons in refusing leave to apply for judicial review at paragraphs 20 to 25 of the CALL-1 form:
“ 20. The applicant filed an affirmation but it contains no grounds; she only submits that the decision to dismiss is wrong. She submits she was not given enough time to submit supporting documents and will submit her husband’s death certificate. She reiterates that she has enemies in a country and her life will be in danger if she returns.
21. Notwithstanding the fact there are no grounds, I have considered with rigourous examination and anxious scrutiny the papers of this application. I have considered the fact the adjudicator did not afford the applicant a second rearranged oral hearing after she was late for the original hearing. Was it fair?
22. The applicant was 90 minutes late for her hearing without a satisfactory explanation. When she did not arrive on time the applicant said over the telephone that she was on her way and in Tsimshatsui which is not far from the Wanchai office of the TCAB by bus or MTR. When she had not arrived half an hour later, the TCAB called her phone again but she did not answer. When she did eventually arrive, the appeal had adjourned which meant I am sure, the interpreter had been released. The applicant had no reasonable explanation except that she got stranded or got lost. She did not elaborate or give a full picture of where she went during that time which made her so late.
23. The adjudicator did not ask her to elaborate and applied section 15 of schedule 1A of the Immigration Ordinance Cap 115 and paragraph 11 of the petition guide. The adjudicator was not satisfied with the applicant’s written explanation and determined the appeal despite her absence. Was it reasonable or fair or a harsh decision? It is harsh but not procedurally improper or irrational.
24. The adjudicator has, despite her absence, carefully considered her claim and evidence. He has made a finding on credibility and she has not had an opportunity to give any explanation on those inconsistencies he highlights which does trouble me. However, it is not only inconsistencies that leads him to doubt her but also the implausibility of her evidence which comes from hearsay, speculation and bare assertions which could not have been improved by her presence and oral evidence at an appeal hearing.
25. After considering his decision and his analysis of her evidence, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.”
11. According to the court record, a copy of the CALL-1 form and the sealed of the deputy judge’s order were sent to the applicant on 11 April 2018.
12. After reading the papers, this Court listed the application for hearing on 14 August 2018. The Director, as the putative interested party was notified.
13. We heard the application on 14 August 2018. The applicant did not appear in court at the appointed time whilst the Director appeared by counsel. After waiting for some time, the court dismissed her application. The applicant subsequently turned up and she said she went to the wrong courtroom. We re-opened the case and heard submissions from her and counsel for the Director.
General principles
14. Before we address the applicant’s case, it is necessary to highlight the following general propositions:-
(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal...
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