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Re Alaya And Another

Judgment Cited authorities 17 Cited in 1 Precedent Map Related
Vincent
Judgment Date01 March 2021
Neutral Citation[2021] HKCA 206
Year2021
Judgement NumberCAMP74/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP74/2020 RE ALAYA AND ANOTHER

CAMP 74/2020

[2021] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 865 OF 2017)

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RE: ALAYA 1st Applicant
JAKIR ANAS POOL 2nd Applicant

_______________

Before: Hon Cheung and Au JJA in Court

Date of Written Submissions: 18 August 2020

Date of Judgment: 1 March 2021

_______________

J U D G M E N T

_______________


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

Introduction

1. On 13 February 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 358), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 12 October 2017 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 25 November 2016 (“the Director’s Decision”).

2. Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”), the 14-day time period for the applicants to appeal the Deputy Judge’s Decision expired on 27 February 2019. On 11 October 2019, the applicants sought extension of time to appeal the Deputy Judge’s Decision. They were about eight months out of time.

3. On 18 June 2020, the Deputy Judge refused to grant extension of time to the applicants (“the Extension of Time Decision”).

4. By a summons dated 30 June 2020 (“the CA Summons”), the applicants renewed their application to appeal out of time before this Court. Directions were given by the Registrar of Civil Appeals to the applicants on 29 July 2020 concerning the conduct of the application. Paragraph 7 of those directions stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers. Under Order 59, rule 14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing. After considering the available documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5. The 1st applicant and 2nd applicant are mother and daughter of Bangladesh origin. The 1st applicant came to Hong Kong as a domestic helper on 12 November 2013 but overstayed after her contract was terminated. She was arrested by the police in Hong Kong on 16 September 2014 and raised her non-refoulement claim on 19 September 2014. Subsequently on 13 October 2015, she gave birth to the 2nd applicant in Hong Kong and made a non-refoulement claim on 25 January 2016 on her daughter’s behalf. In the 2nd applicant’s non-refoulement claim form, it was stated that the 2nd applicant’s claim was dependant on the 1st applicant’s claim.

6. They were legally represented before the Director, but not before the Board. In the appeal before the Board, the 1st applicant acted for the 2nd applicant.

7. The 1st applicant’s claim was based on the fear that if she and her daughter returned to Bangladesh, they would be harmed or killed by the members of Awami League (“AL”) who had raped the 1st applicant because she refused to join them. She also claimed the fear of being harmed by her creditors and guarantors due to her failure to repay the loans to the local bank. The factual background was summarized at paragraph 8 of the Director’s Decision and paragraphs 9 - 17 of the Board’s Decision.

8. The 1st applicant claimed to have been an active supporter of Bangladesh Nationalist Party (“BNP”) since 2003. Despite repeated demands from the AL, she refused to join them. In 2013, she claimed to have been gang raped by members of AL followed by an unsuccessful attempt of suicide. A month after the incident, the 1st applicant was again approached by the perpetrators. Though they did not do anything at that time, the 1st applicant decided to come to Hong Kong as a domestic helper to avoid them. To fund her agency fee, she borrowed money from a bank with two friends acting as her guarantors. However, she lost her job and was unable to repay the loans. While she was in Hong Kong, she began a relationship with a Bangladeshi man, the father of the 2nd applicant, who also made a non-refoulement claim.

The Director’s Decision and the Board’s Decision

9. By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non-refoulement claims on the BOR 3 risk[1], persecution risk[2], torture risk[3] and the BOR 2 risk[4]. The Director assessed the claim of the 2nd applicant as part of the 1st applicant’s claim and did not process the 2nd applicant’s claim separately.

10. The applicants lodged an appeal to the Board against the Director’s Decision. An oral hearing was held on 26 June 2017, during which the 1st applicant answered the Board’s questions with the assistance of an interpreter. During the hearing, the 1st applicant clarified several aspects of her claim, including that of the 2nd applicant. She stated that she had now married her boyfriend and the 2nd applicant was no longer an illegitimate child and that if they were to return to Bangladesh, her husband would be able to accompany them (paragraph 21 of the Board’s Decision).

11. After hearing the 1st applicant, and considering the applicants’ evidence in the non-refoulement claim forms, the Board attached credence to the 1st applicant’s versions of several events, such as her political affiliation, the rape incident, her subsequent encounter with the perpetrators and her decision to come to Hong Kong. However, the Board found her descriptions about the consequences of defaulting the loan vague and implausible. Further, the Board found that the AL no longer had interest in the 1st applicant and her risk of harm was therefore low (paragraphs 33 - 48 of the Board’s Decision). Alternatively, the Board considered the sufficiency of protection for the applicants in local area and the possibility of internal relocation. It found that the applicants could not receive sufficient protection in the local area (paragraphs 49 - 57 of the Board’s Decision). The Board then proceeded to determine whether the applicants could safely and reasonably relocate to a different part of Bangladesh. The Board first considered the 1st applicant’s evidence that she was now married and the illegitimacy status of the 2nd applicant no longer existed and concluded that there was no longer a risk for the 1st applicant as a single mother and for the 2nd applicant as an illegitimate child (paragraphs 58 - 63 of the Board’s Decision). The Board then found that internal relocation was available to the applicants after considering the following factors: the 1st applicant used to live safely in other areas; she now had the support of her husband; she also had the requisite skills to relocate and there was no evidence suggesting that the 2nd applicant would not be able to have access to education or other relevant civil rights or lead a normal life as other children in Bangladesh (paragraphs 64 - 73 of the Board’s Decision). Thus, the Board dismissed their appeal.

The Deputy Judge’s Decision

12. On 10 November 2017, by way of a Form 86, the applicants sought to challenge the Board’s Decision and the Director’s Decision by way of judicial review. They did not request an oral hearing nor did they advance any grounds of review. After considering the documents, the Deputy Judge refused to grant leave to them to apply for judicial review. He set out his reasons at paragraphs 14 - 18 of the Deputy Judge’s Decision:

“14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board who are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

15. The adjudicator having heard A1 in evidence accepted her claim in relation to the risk of harm from the AL people as plausible, but went on to carefully and meticulously set out her findings and reasons in paragraphs 33 - 73 of the Board’s decision in the consideration of her claim in which the adjudicator correctly applied the relevant principles to arrive at the conclusion, and having considered the Board’s decision with rigorous examination, I am unable to find any fault in those findings or reasoning at all.

16. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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...

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1 cases
  • Re Alaya And Another
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 16 Junio 2021
    ...for leave to appeal to the Court of Final Appeal against this Court (Cheung and Au JJA)’s judgment of 1 March 2021 (“the Judgment”) [2021] HKCA 206. In the Judgment, we refused to grant extension of time to the applicants to appeal the decision of Deputy High Court Judge Bruno Chan on 13 Fe......

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