Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Begum Mst Sinthia And Another

Judgment Cited authorities 13 Cited in 1 Precedent Map Related
Vincent
Judgment Date01 March 2021
Neutral Citation[2021] HKCA 207
Year2021
Judgement NumberCAMP92/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP92/2020 RE BEGUM MST SINTHIA AND ANOTHER

CAMP 92/2020

[2021] HKCA 207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 92 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 651 OF 2018)

_______________

RE:
BEGUM MST SINTHIA 1st Applicant
ZAHEER JANNATUL FERDAUS 2nd Applicant

_______________

Before: Hon Cheung and Au JJA in Court

Date of Written Submissions: 13 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 28 June 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1037), 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 6 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2017 (“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 12 July 2019. On 28 November 2019, the applicants sought extension of time to appeal the Deputy Judge’s Decision. They were about four months out of time.

3. On 29 June 2020, the Deputy Judge refused to grant extension of time to the applicants (“the Extension of Time Decision”).

4. By a summons dated 10 July 2020 (“the CA Summons”), the applicants renewed their application 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 5 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 4 July 2014 but overstayed after her contract was terminated. She surrendered to the Immigration Department on 21 February 2016 and raised her non-refoulement claim on 30 June 2016. Subsequently on 27 December 2016, she gave birth to the 2nd applicant and made a non-refoulement claim on 10 February 2017 on her daughter’s behalf. 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 they returned to Bangladesh, they would be harmed or killed by the 1st applicant’s neighbour Nannu, a member of Awami League (“AL”), who had a land dispute with the 1st applicant. The factual background was summarized at paragraph 8 of the Director’s Decision and paragraphs 26 - 35 of the Board’s Decision.

8. The 1st applicant claimed that her family had a land dispute with Nannu after the death of her father in 2004. In order to avoid Nannu, her family relocated and changed phone numbers but these measures were of no avail. The 1st applicant had no choice but went to work in Lebanon in 2010. She returned home in 2013 and was abducted by Nannu and his associates. Although they let her go, Nannu extorted money from her. In the end, the 1st applicant’s mother transferred the land to Nannu. Yet, he continued to demand money and harass her family. Out of fear, she fled to Hong Kong for protection. She married her husband in Hong Kong on 28 December 2014 and gave birth to the 2nd applicant on 27 December 2016.

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 separately.

10. The applicants lodged an appeal to the Board against the Director’s Decision. An oral hearing was held on 20 December 2017, during which the 1st applicant answered the Board’s questions with the assistance of an interpreter. After hearing the 1st applicant, and considering the applicants’ evidence in the non-refoulement claim forms, the Board found that the 1st applicant’s evidence on the dispute over the property with Nannu was vague and unsubstantiated. There was in any event no state involvement. Further, the 1st applicant had never suffered any personal harm and the only physical contact she alleged to have encountered was the attempted abduction when she returned home from Lebanon but such event was not repeated before she fled to Hong Kong. The Board found that the totality of the evidence would not lead to a conclusion that, even if the 1st applicant’s version of events were entirely credible, she would suffer any serious harm or even a minimal level of harm from Nannu. In any event, after considering the relevant country of origin information (“COI”), the Board found that state protection and internal relocation were available to the applicants (paragraphs 48 and 53 of the Board’s Decision). The Board therefore dismissed the appeal.

The Deputy Judge’s Decision

11. On 17 April 2018, by way of a Form 86, the applicants sought to challenge the Board’s Decision by way of judicial review. The grounds of review attached to the Form 86 were succinctly summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision:

10. On 17 April 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1) procedural unfairness in that the adjudicator had unlawfully fettered his discretion by refusing their appeal on the grounds that they did not satisfy the requirement, that he acted in a procedurally unfair manner in dealing with their appeal, that his decision to refuse their appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness, and that the adjudicator failed to meet the greater care and duty owed to a self-represented claimant;

(2) procedural impropriety in that the Board had significantly relied on source of news not officially recognized or is simply hearsay or outdated that resulted in groundless speculations that it would be safe for them to return to their home country; and

(3) procedural unfairness in providing the hearing bundle to them only a few days before the appeal hearing without translation or interpretation.”

12. After hearing the 1st applicant on 29 March 2019 and considering the documents, the Deputy Judge refused to grant leave to them to apply for judicial review. He set out his reasons at paragraphs 11 - 16 of the Deputy Judge’s Decision:

“11. The complaints under the first two grounds are however just broad and vague assertions of the applicants containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or how the adjudicator had unlawfully fettered his discretion, or why was his decision unfair or unreasonable in the public law sense, or in what way did the adjudicator fail to take into account of relevant COI or which information were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of the complaints under either ground.

12. As for their complaint under Ground (3) about the hearing bundle being provided to them only a few days before the appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English without translation and thereby given them insufficient time to prepare for their appeal.

13. Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decision should by then be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at the oral hearing A1 never raised any issue or requested the adjudicator for further time to enable her to better prepare for the appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

14. Furthermore, 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.

15. In the premises and having considered the decisions of both the Director and the Board...

To continue reading

Request your trial
1 cases
  • Re Begum Mst Sinthia And Another
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • June 11, 2021
    ...of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 1 March 2021 (“the Judgment”) [2021] HKCA 207. 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 28 Jun......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT