Akther Lima v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL484/2017

[2018] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 484 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 arrived in Hong Kong on 16 November 2013 as a foreign domestic helper.  She was permitted to remain in Hong Kong until 16 November 2015 but her contract was prematurely terminated on 2 January 2014.  She should have left Hong Kong on 17 January 2014 but she did not and overstayed.  She was arrested by the police on 7 February 2014 and then she lodged a non-refoulement protection claim with the Director of Immigration (“the Director”).  This was rejected by the Director on 30 July 2015 and 24 October 2016.  She lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 27 July 2017.

2.She filed a notice of application for leave to apply for judicial review on 4 August 2017 and requested an oral hearing which was set down for 22 November 2017.  The applicant appeared in person having had her application for legal aid refused.

3.The basis of her claim was that if she were to return to Bangladesh she would be harmed and persecuted by the Bangladeshi government because she was a member of the Jamaat-e-Islami (“JI”) and her ex-husband threatened her life as a supporter of the Awami League (“AL”).  There was also a danger from threats from a moneylender who she owed money called Mehedi.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full in their decisions therefore, I only intend to summarise it here.

4.The applicant had been a member of the JI since 2000 when she joined the student wing; she joined rallies and invited people to vote for the party.  She married her husband in 2006 and there was no conflict between them despite supporting different political parties until 2013 when his party clamped down on the actions of JI members.  At about this time he began to physically abuse her and beat her.  It was after one political rally in May 2013 when he beat her for participating in a JI rally that she left home to stay with a friend until June before attending a domestic helper training course with a view to working in Hong Kong.

5.In order to pay the employment agency to arrange employment in Hong Kong, the applicant borrowed money from a bank and a businessman called Mehedi which is still outstanding.  Apparently, since arriving in Hong Kong he has been to her mother’s home on several occasions demanding repayment but the applicant says he has never threatened her personally or directly.

6.Since arriving in Hong Kong, she has heard that the political situation has worsened in Bangladesh; she has heard the police have been ordered to arrest active members of JI which is why she fears harm and persecution if she returns.

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 treated the appeal as a rehearing and directed that an oral hearing be conducted.  He correctly set out the law and key legal principles applicable to the four grounds.  The applicant confirmed under oath contents of her claim and record of interview to be true and correct and elected to answer questions.  The adjudicator set out the applicant’s evidence and his analysis of her evidence in his decision.

9.The adjudicator found the applicant’s account had discrepancies and gave her an opportunity to explain but that led to different accounts.  He set out those discrepancies in his findings on credibility in his decision.  He found the applicant did not come to Hong Kong to escape persecution due to her membership of JI nor to escape from threats of harm from either her ex-husband or a moneylender.  On her own account, the moneylender has never threatened her.  He found she came to Hong Kong purely for economic reasons to work as a domestic helper.

10.The fact she did not apply for protection when her contract was prematurely terminated and did not apply until after her arrest for overstaying casts doubt on the veracity of her claim.  The adjudicator did not accept her explanation that she was unaware of the protection system in Hong Kong.

11.The adjudicator rejected her claim she lived in fear of being persecuted by the government due to her membership of JI; there was no evidence at any time she was personally targeted due to any affiliation to JI.  Moreover, she applied for her own passport and left Dhaka on 16 November 2013 without hindrance.  He found her entire case based on speculation and bare assertions.

12.Even if her allegations of assault by her ex-husband were true, the injuries she claims to have received were not ever of the degree of severity required to establish a claim for non‑refoulement protection.  The adjudicator found that there was no evidence of any future risk of ill-treatment, torture or persecution; her evidence was speculation, hearsay and unsupported assertions tainted by an unreliable witness.

13.When the adjudicator applied the law and key legal principles to all four applicable grounds he found that she had failed to establish a claim under any ground.  There was no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance; the torture risk claim failed.  There was no evidence of any real risk to the applicant’s right to life or that she would face the prospect of torture or CIDTP; the BOR 2 and BOR 3 risk failed.  Lastly, she could not establish she had a well-founded fear of being persecuted for a reason set out in the Refugee Convention if she was refouled to Bangladesh; her persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

15.This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning Country of Origin (“COI”) material and information.  Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator for failing to consider a consistent system of human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.  Firstly, particulars have not been given in relation to each of these grounds and complaints.  Secondly, the adjudicator has made little reference to COI material.  Having found no evidence, the applicant would be personally at risk if refouled and making the specific finding the applicant was not a genuine credible claimant, there was no need for the adjudicator to consider human rights violations and State protection in Bangladesh in any depth.

16.Grounds 6, 7 and 8 also lack particulars.  There was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously.  In fact, during the oral hearing the applicant confirmed to this court that she had no complaints against the duty lawyer and wish to delete this complaint.  None of the above grounds have any merit.

17.There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  She says she was ill-prepared and confused during the hearing.  However, during the oral hearing the applicant confirmed to this court she did not raise this with the adjudicator at the appeal hearing.

18.There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator.  This complaint makes no sense when the Director decided on 24 October 2016 there was no BOR 2 risk and the appeal hearing was 18 January 2017.  Clearly the Director determined this risk long before the adjudicator determined it again.  This complaint has no merit.

19.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.

20.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 9^th 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