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

HCAL524/2017

[2018] HKCFI 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 524 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 came to Hong Kong to work as a foreign domestic helper on 12 February 2014 but her contract was prematurely terminated and she failed to leave as required; overstaying since 5 November 2014.  She then surrendered to the Immigration Department on 4 December 2014 and lodged a non-refoulement protection claim on 19 March 2015.  The Director of Immigration (“the Director”) rejected her claim on 31 May 2016 and 6 July 2017.  She lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 11 August 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 17 August 2017 and requested an oral hearing which was set down on 3 January 2018; the applicant appeared in person having had her legal aid application refused.

3.The basis of her claim was that if she was refouled to Bangladesh she would be harmed or killed by members of the Awami League (“AL”) because she was a supporter of the Bangladesh Nationalist Party (“BNP”) and had refused to stop working for her party despite their request.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only intend summarise it here.

4.The applicant was born in 1986, received eight years of education, worked as a tailor before training as a domestic helper and coming to Hong Kong.  When she was 18 she began to support the BNP but the AL became the ruling party in 2008.  In the lead up to the general election in January 2014, in 2012 and 2013 she would help the general secretary of the BNP of her area promote the BNP in nearby villages and persuade females to support their party.

5.At about the same time, members of the AL would tell her to stop campaigning, threaten her with violence and even death if she did not stop working for the BNP.  One night in July 2013, two men from the AL broke into her house and grabbed her but she screamed, attracting the attention of some neighbours which caused the men to flee.  This frightened her so much that she stayed with a neighbour for a few days.  She then left her village to stay with a friend in Dhaka some four hours away.

6.In October 2013 she began to train to be a domestic helper in an employment centre even further away from her friend’s home in Dhaka; remaining there until February 2014.  She then left for Hong Kong on 12 February 2014.

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 elected to answer questions and give evidence.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and claim and his analysis of it.  The adjudicator did not believe the applicant’s evidence of why the AL would target her and set out his reasons for his conclusion in his decision.  He believed she made up her evidence and found it incredible, implausible and essentially impossible.

9.Her evidence was they, members of AL, warned her not to recruit and persuade women to support the BNP for the upcoming general elections in January 2014 and threatened to kill her because she refused to stop campaigning yet when questioned by the adjudicator she did not know that the BNP had in fact, according to the Country of Origin (“COI”) information quoted in the decision boycotted the general election of January 2014.

10.Despite the adjudicator rejecting her evidence and concluding she was not a genuine claimant, he went on to assess her claim under all applicable grounds on the basis that her evidence was credible.  He concluded that even on her own facts she failed to establish a claim under any ground and had not made out a case for non-refoulement protection.

11.The adjudicator found on her own facts that the applicant had never been harmed physically or established she had suffered severe pain or ill-treatment either physically or mentally.  With regard to a torture risk, there was no evidence the people who broke in to her house or who threatened her were public officials or persons acting in an official capacity even if they were members of the AL.  She had not reported those threats or the break-in to the police; there was no evidence they ignored any threat to her.  She made allegations against the police to the adjudicator; allegations she made for the first time that were bare allegations.

12.The adjudicator applied the law and their own evidence and found there was no real risk the applicant would face torture as defined and set out in section 37U(1) 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 claim failed.  Lastly the adjudicator found she did not establish she had a well-founded fear of being persecuted for a Refugee Convention reason; her persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

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

14.The supporting affirmation lists the following as grounds for seeking leave:

(1)  lack of language assistance given to him/procedural impropriety;

(2)  error in finding the applicant not credible; and

(3)  COI out of date, hearsay and not officially recognized.

15.The first ground the applicant relies on was that she was ill-prepared for the hearing.  She only received the bundle six days before the hearing and it was in English.  She did not have the money to hire an interpreter to read it to her.  Therefore, she was confused on the day of the hearing.  However, there is no indication in the decision that the applicant complained to the adjudicator that she was ill-prepared or needed help with any translation.  There was an interpreter provided at the hearing to assist the applicant if necessary.  I am not satisfied there is any procedural unfairness or impropriety.  Moreover, this application and affirmation is in English. There is no merit in this ground.

16.The applicant added during the oral hearing that she told the adjudicator she was also not feeling well on top of confused.  She had told the adjudicator that she could not continue to answer questions but she was ignored by the adjudicator.  This was not mentioned in the decision.  More importantly, these very important particulars were not in her affirmation.  I have my doubts about the veracity of this claim against the adjudicator that he ignored her.

17.She then said she was not feeling well during the oral hearing for the judicial review application and had had chest pains for two days.  She was invited to sit down and was asked if the pain had gone on for two days whether she had been to a doctor and she said she was taking medication her friend had given her.  I asked if she could continue with the hearing and she asked for an adjournment because she needed more time.

18.I took the view that if she had been unwell for two days yet had not been to a doctor, had attended the hearing and not mentioned feeling unwell at the very beginning of the hearing then she could continue.  I did not envisage the hearing taking much more time.  I asked if she had anything further to add her submissions and she had none; only that problems still existed in Bangladesh.

19.The second ground is a complaint that the adjudicator did not believe the applicant’s evidence and credibility when she answered all questions honestly.  There are no particulars in this ground.  The adjudicator has made a finding after evaluating evidence and it is not one I will interfere with in this application.  There is no merit in this ground.

20.The last ground relates to the adjudicator relying on hearsay/outdated/obscure COI material.  No particulars have been provided and the applicant has simply failed to show and identify what material offends.  There is no merit in this ground.

21.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  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.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 11^th day of May 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