Akter Salma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL421/2017

[2018] HKCFI 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 421 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Bangladeshi national who entered Hong Kong on 11 February 2014 as a foreign domestic helper and was permitted to remain until 11 February 2016. Her employment contract was prematurely terminated but she did not leave as required and overstayed from 27 April 2014.  She was arrested by the police on 24 May 2014 for overstaying.  She lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 29 October 2015 and 24 October 2016.  She lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 6 July 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 18 July 2017 and requested an oral hearing which was set down for 9 November 2017.  The applicant appeared in person having had her legal aid application refused.

3.The basis of her claim was that if she were to return to Bangladesh her life would be in danger, she would be harmed or even killed by her husband Molla and other Awami League (“AL”) members because she was a supporter of the Bangladesh Nationalist Party (“BNP”).  She had been threatened by them in particular between 2004 and 2006 as well as between May and July 2013.  Both the Director and the adjudicator set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

4.The applicant comes from a family of BNP supporters.  She was born in 1987, had 10 years of education, worked as a domestic helper in Bangladesh for two years until May 2013 before coming to Hong Kong in February 2014.  In 2006 she entered an arranged marriage with Molla.  Neither sides or families knew that she supported the BNP and he supported the AL.  Her relationship with him was very good before the end of 2009 but it deteriorated after he wanted her to quit the BNP and join the AL.  By the end of 2012 because of her refusal to change her political affiliation, he began to mistreat her.

5.The end of 2012 he began to physically abuse, hitting her with a wooden stick on the first occasion.  After that he assaulted her on numerous occasions; many times a month.  She would apply ointment to her bruises all over her body.  The abuse escalated at the beginning of 2013 because she would not stop attending BNP activities.  He tried to forbid her from leaving the house and threatened to kill her if she disobeyed him.  She agreed for a while.  When she still refused to join the AL, he locked her in the bedroom for 24 hours without food and drink and tied her up and beat her with a stick.  She not once reported any of the abuse to the police because the police would not offer her any help.  At that time, she was working as a domestic helper.

6.In May 2013 she took her 4-year-old daughter and moved her mother’s home after a particular serious beating.  Molla came looking for her on several occasions accompanied with four to five AL members and threatened to kill her if she did not return home. She lived there for two months but lived in fear of his threats.  She did not cease political activities and in fact was very active in electioneering and attending meetings and rallies.  This attracted the attention of AL members and they visited her home and threatened her.  This frightened her and she decided that she had to leave Bangladesh on the advice of friends and her parents.  She applied for a domestic helper job in Hong Kong.  She left after three months training in November 2013.

7.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant represented herself and submitted in her grounds of appeal great dissatisfaction with the screening system in Hong Kong.  She proposed that the government place all asylum seekers on an island where they were not allowed to work or earn money; in that way only genuine asylum seekers would remain here.  The adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds as well as the standard of proof and burden of proof.

9.She considered the substantial amount of Country of Origin (“COI”) information on Bangladesh, specifically that information on State protection, internal relocation and protection for victims of domestic violence.  She found that although Bangladesh was a country not free of corruption and political violence, in the applicant’s case she could seek assistance under the domestic violence act and help of the legal aid as well as human rights organisations.  She could also relocate internally without undue hardship.  She was able-bodied with work experience and there were job opportunities in cities like Dhaka where her husband would find it hard to locate her if she divorced him.  She even admitted she was able to see her family and daughter free of pressure when she lived in Dhaka whilst training before leaving for Hong Kong.

10.The applicant elected to answer questions during the appeal.  She said that she tried to obey her husband’s orders and stop her BNP political activities but time and time again she defied him and her own parents.  She admitted that her political activities had a disruptive effect on her marriage and family life but she did not want to refuse her BNP group members.  As political rallies were organised and led by male members and not women, she would not be involved in fights or assaulted at these political rallies.  She claimed her husband would harm or kill her if she returned to Bangladesh but admits her parents and her daughter have never been harmed by him.  She said if the BNP had been the ruling party in Bangladesh, the male members would protect her against her husband.  However, she could not explain why they failed to help her when they were the ruling party before 2006.

11.The adjudicator found her to be an outspoken person who stood up to her husband.  She concluded that she was a victim of domestic abuse rather than persecuted for her political opinion by her husband. Her political affiliation did not affect her marriage for the first few years but when he began to beat her she did nothing about it. She made no report to the police, leave him or divorce him.

12.The adjudicator found the severity of the assaults, even on the evidence of the appellant and her own facts, were not in the severe category.  They did not meet the minimum level of severity to be defined as torture.  She suffered bruises on her body and limbs that required ointment only.

13.The harassment from other members of AL years ago was not serious enough to be regarded as torture or ill-treatment or CIDTP.

14.Having made those findings and take into account the definition of torture in section 37U(1) of Cap 115, the adjudicator found the applicant had failed to establish that she would be at risk of being tortured and that such danger is present and personal.  She only suffered physically at the hands of her husband and he was not a public official and the ill-treatment was not acquiesced by nor was the ill-treatment consented to by a public authority as required under the definition.  She was not a target of the State.  The adjudicator found the torture risk claim failed.

15.As far as the BOR 3 risk was concerned, the ill-treatment did not reach a minimum level of severity to invoke the protection of BOR 3 and there was no evidence of a genuine and substantial risk of her being subjected to such ill-treatment if refouled.  Therefore, the BOR 3 risk claim failed.  The same findings applied to the BOR 2 risk claim, the adjudicator found she was not at risk or danger of being deprived of her life if refouled; this claim failed as well.

16.The applicant had claimed she faced persecution if she returned to Bangladesh but the adjudicator found her fear was not well-founded, genuine or real.  Her fear from her husband did not arise from a refugee Convention reason but a personal relationship reason.  She was a victim of domestic violence rather than a victim of persecution for reason of her political opinion. That was the adjudicator’s finding and on the facts, it is reasonable.  The adjudicator found on her evidence, her fear of other members of the opposition party to be speculative at best. She was unable to establish she would be persecuted if refouled to Bangladesh; her persecution risk claim failed.  The decision of the Director was confirmed.

Leave to apply for judicial review

17.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  She analysed the material, claim and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

18.There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As examples, for ground 6, it was never part of the applicant’s case that she required psychological or psychiatric treatment which would necessitate such reports to assist the assessment of her claim.  For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  The applicant submitted during the oral hearing before me that she did not know she should tell the adjudicator about the duty lawyer’s poor performance.  These grounds have no merits.

19.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was sufficient State protection if there was a real risk to her if refouled.  These grounds are not arguable.

20.The applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her.  She made an election to give evidence.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.

21.There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 24 October 2016 about three weeks before the appeal hearing date.  This means the Director clearly and obviously considered it before the adjudicator.

22.There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable. This is odd when the adjudicator made no particular finding as to credibility; effectively she found the applicant a witness of truth.

23.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.

24.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 23^rd day of February 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1