Begum Jahanara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL621/2017
[2018] HKCFI 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 621 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong on 4 October 2013, to work as a domestic helper.  She was therefore permitted to remain as a Foreign Domestic Worker until 4 October 2015.  Her employment contract was prematurely terminated on 27 December 2013.  From 11 January 2014, she was illegally overstaying as she did not obtain a further employment contract.  The Applicant was arrested on 12 August 2014, for overstaying and for taking up unapproved employment.  She was convicted of those offences on 15 August 2014, and sentenced to two months’ imprisonment.  She was transferred to the Department of Immigration for removal on 20 September 2014, and submitted a non-refoulement (“NRF”) claim by way of written representation on the same day.  She was released on recognisance on 18 October 2014.  Her NRF claim form was submitted on 12 February 2015.

2.The Applicant attended screening interviews on 30 April, 13 May and 2 June 2015.  The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 24 July 2015 and by Notice of Further Decision (re BOR 2 ) on 9 June 2017.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 August 2015.  The Adjudicator of the TCAB, Mr Ian Candy, heard her on 28 June and 26 July 2016.  The Adjudicator confirmed that the Applicant did not wish to add any grounds of appeal under BOR 2, which had yet to be considered by the Director, and considered her appeal on all applicable grounds including BOR 2.  The Adjudicator refused her appeal on 24 August 2017.

3.The Applicant submitted a Form 86 seeking leave to apply for judicial review on 14 September 2017.  She was heard on 2 February 2018.

Summary of personal background

4.The claimant is a Bangladeshi national.  She was married in 1992 at the age of 10 and lived in Baichara, which is in the Chandpur District, Bangladesh.  Her natural family and her husband had Bangladeshi Nationalist Party (“BNP”) affiliation and her husband’s step‑brothers were members of the Awami League (“AL”).  This inevitably caused friction which resulted in physical abuse of her and her husband.  At one stage the Applicant says she was stabbed by one of her brothers-in-law several times.  The police investigated this attack but no prosecution ensued because, she alleged, the police had been bribed.  She alleged that the police were also bribed when her husband and two young sons were found murdered.  She was led to believe that she was going to be accused of their murder and fled to Dhaka with her young daughter and lived there within a female Madrassa.  However, one of her brothers-in-law found her and set fire to the Madrassa.  She then returned to Baichara, as she says she had nowhere else to stay and believes her brother-in-law set fire to her hut.  She returned to Dhaka, gave birth to her second daughter, and worked as a domestic helper locally, eventually fleeing to Saudi Arabia in 2006 leaving her daughters behind.  She worked in Saudi Arabia as a domestic helper for three years and then worked as a domestic helper in Lebanon for a further three years.  During that time, she was led to believe that the police were still investigating her on suspicion of murder.  In 2013, the Applicant returned to Bangladesh.  In October 2103 she came to Hong Kong on a domestic helper contract.  During her visit to Bangladesh, nothing of note occurred.

5.The basis of the Applicant’s claim is that, if returned to Bangladesh, she will be harmed or even killed by her brothers-in-law because of her BNP affiliation and because they fear that she will do them harm as revenge for the murder of her husband and sons.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii.   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);

iii.   risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); and

iv.   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 of the ICCPR (“BOR 2 risk”).

Decision and further decision of the Director

7.The Director analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles. The Director found that the risk of harm to the Applicant from her brothers-in-law was small if she was to be returned to Bangladesh.  He based this upon the low intensity and frequency of past ill‑treatment and the fact that the Applicant had twice returned to Bangladesh and suffered no harm. Further, she had not been formally accused, charged, interrogated, arrested, detained or imprisoned in Bangladesh and had obtained a passport and was able to freely leave and re-enter the country on more than one occasion.  That low level of risk the was reduced or negated by the state protection available.  This assessment was made from the COI information available taking into account the fact that the Director accepted that violence against women was apparent and that police and security forces were the subject of criticism, especially of corruption.  However, that observation had to be set against the context of the steps taken by the Bangladeshi government to curb corruption and improve police professionalism.

8.The Director also found that internal relocation alternatives were reasonably available to the Applicant given the applicant’s previous relocation to, and employment in, Dhaka, where her adult daughters now live.

9.In assessing the claim on the facts, the Director found the matter arose out of a personal dispute with no evidence to indicate state involvement.

Decision of the adjudicator

10.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles. The Adjudicator found the Applicant to be inherently incredible.  Her evidence was based upon hearsay and speculation and as such could be given little weight.  Having heard her in person, he did not accept her evidence as to her political affiliation or as to previous ill‑treatment.  As a consequence, he found that she had failed to establish her case, even to the low standard applicable, on any of the grounds available to her.

Judicial review

11.The Applicant has submitted an affidavit in support of her application which appears to be in the name of Parven Anjuara.  It also appears to be a generic affidavit mimicking grounds of review in other similar affidavits and does not appear to be case specific.  However, the facts contained therein reflect the facts contained within the Decision of the Director and Adjudicator and to that extent the affidavit appears to be that of the Applicant.

12.At the hearing of the leave application, the Applicant acknowledged that she had nothing further to add in respect of her grounds of review.  She admitted that she had been provided with an opportunity to make her case before the Director and the Adjudicator and that they had made enquiries of her.  She had no complaint in that respect save for the fact that they had refused her application.

13.Nevertheless, I have considered the generic grounds of review and have examined the Decision and Further Decision of the Director, as well as the Decision of the Adjudicator, to assess whether the grounds as presented have any merit or are reasonably arguable, with a realistic prospect of success if leave were to be granted.

Conclusion

14.I have not found any error in law or procedure.  The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

Dated 2^nd day of March 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