Fatima Mrs v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1133/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Bangladesh. She is now aged 38 (DOB: 10 December 1979).
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HCAL1133/2017 [2018] HKCFI 1775 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1133 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 Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of Bangladesh. She is now aged 38 (DOB: 10 December 1979). 2.The Applicant claimed that she would be harmed or killed by some people of the Awami League (“AL”) because she witnessed those people killing her husband Mia. She and her husband supported the Bangladesh Nationalist Party (“BNP”). The Applicant also said she would be harmed or killed by Monir because she refused to have courtship with him. (Monir was one of those AL people that killed Mia.) 3.The Applicant said she married Mia in mid-2008. He was the office secretary of BNP in Mirpur. The Applicant herself also became a member of BNP. 4.Mia had some friends including Monir but they supported AL. They were influential in their party. 5.In 2009, AL became the ruling party in Bangladesh. Animosity between AL and BNP grew. Mia’s friends persuaded him to join AL. Mia ignored them. Their relationship then deteriorated. There were increasing attacks on Mia. 6.In October 2009, the Applicant and Mia were attacked by some AL people in the market. They managed to escape though the Applicant was injured. The Applicant guessed those people wanted to kill Mia. Yet, the couple did not report the matter to the police. 7.In late 2009, Monir seduced the Applicant to leave Mia. The Applicant complained to Mia. 8.On 4 May 2012, Mia attended a press conference. BNP members and AL supporters had a fight. The next day, some masked men came to the Applicant’s home and killed Mia. The Applicant managed to pull off the marks of two of the killers. One of them was Monir. Those people intended to rape the Applicant before killing her but she managed to escape eventually. 9.The Applicant told the police what she had seen including Monir. However, she did not believe the police would follow up her complaint because AL was in power. She did not enquire with the police about the progress of investigation. She did not know whether the police had taken any action against the killers. 10.The Applicant left home to stay with a friend. She received threatening calls from Monir, who forced her to develop a love relationship with him or he would kill her and her brother. 11.In June 2012, the Applicant fled with her brother to another place in Bangladesh. She had not heard from her enemies since then. 12.In order to make a living, the Applicant received training as domestic helper between May and September 2013. Then she came to Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in February 2014. She overstayed in Hong Kong and surrendered to the police only in May 2014. She sought non-refoulement protection subsequently. 13.The Applicant said she learned from the news that AL had been persecuting BNP. She believed her enemies would still kill her because she witnessed the murder of her husband. The Bangladesh authorities including the police would not protect her because they were influenced by AL. 14.The Applicant did not think she could relocate to other parts of Bangladesh. She said AL had police assistance and strong networks to find her in the country. 15.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 16.On 21 December 2017, the Applicant filed the current application for leave for judicial review. Chronology of events 17.Things happened in this order: –
Respondent/Interested party 18.In the current application, the Applicant in Form 86 (the notice of application for leave to apply for judicial review) named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent and the Director is the putative interested party. Director of Immigration (the Director) 19.In the Director's decision dated 7 August 2015, the immigration officer noted a number of unsatisfactory features in the Applicant’s allegations. The officer found there were no substantial grounds for believing the Applicant faced harm from her alleged enemies. 20.The officer was aware there were reports of police corruption and discrimination against single women in Bangladesh. However, there was objective country-of-origin information (“COI”) showing the Bangladesh government had put measures in place for improvement. There were also venues for women to seek protection in the country. The officer was satisfied reasonable state protection and internal relocation were available to the Applicant. 21.The officer did not accept the Applicant would be subjected to torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds. 22.Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter. 23.In the Director’s further decision dated 2 February 2017, the officer considered the Applicant failed to establish a personal and real risk of her rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 24.The Applicant was absent from the appeal hearing scheduled for 10 February 2017. The Adjudicator nevertheless went on to consider the merits of the Applicant's appeal. 25.The Adjudicator noted the Applicant came to Hong Kong to work as domestic helper. She did not seek non-refoulement protection immediately but only two odd months after the termination of her employment contract. The Adjudicator was not satisfied that the Applicant was a genuine asylum seeker. 26.However, even on the Applicant's own account of events the Adjudicator found that her claimed situation was not instigated, consented or acquiesced by the Bangladesh government or officials. There was no evidence to support the Applicant's allegation that the Bangladesh police failed to take on her case. 27.The Adjudicator had considered relevant COI. He was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable. 28.The Adjudicator found the Applicant did not face any real risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). Grounds of judicial review 29.In Form 86 and her affirmation, the Applicant complained the Adjudicator acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant; relied on information not officially recognised or simply hearsay or outdated cases. 30.The Applicant also complained the Director only served the appeal bundle on her seven days before the Board hearing. She did not have sufficient time for proper preparation of the appeal given that she lacked legal representation and language assistance. The Applicant said she was confused and therefore absent from the Board hearing. 31.In paragraph 11 of Form 86, the Applicant disclosed that she had previously applied for leave for judicial review before Deputy High Court Judge Woodcock. The Applicant said that application was refused ‘due to lack of presentation’. Court hearing 32.In Form 86, the Applicant requested a hearing. The hearing took place on 6 June 2018. The Applicant was in person. A Bengali interpreter provided interpretation service in court. 33.The Applicant admitted she had received the decision in HCAL 345/2017. She first said she had lodged appeal, which was yet to be heard. Later, she changed to say she had not appealed against that decision. 34.The Applicant said she reapplied for leave for judicial review on the advice of a friend. The Applicant could not explain why she was entitled to make a second application for leave for judicial review. The case was then adjourned to 11 June 2018 for her to make further submission or to consider withdrawal if she could not justify her current application. 35.On 11 June 2018, the Applicant was absent. The Bengali interpreter called the Applicant's mobile phone. Someone claimed to be the Applicant's boyfriend said the Applicant was in hospital due to heart disease. No other details were given by the man. The interpreter informed the man of the court’s direction for him to convey to the Applicant. The direction was that the Applicant should write to the court within seven days to justify her absence with sufficient proof. Failing which, the court would determine the current application on consideration of documents only. 36.Up to today, the court has not heard from the Applicant further. Discussion 37.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 38.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] Renewed application for leave for judicial review 39.The Applicant had previously applied for leave for judicial review against the Board and the Director before Deputy High Court Judge Woodcock in HCAL 345/2017. She was heard by the Judge on 26 September 2017. On 1 December 2017, the Judge refused her application. The Judge found there was no merit in the Applicant’s complaints against the Board and there was no room for the Applicant to seek judicial review against the Director.[6] 40.There was no appeal against the Judge’s ruling in HCAL 345/2017. 41.I have reviewed the papers in HCAL 345/2017. In the affirmation in that case, the Applicant expressed her grounds of judicial review in a different manner. Basically, she complained the Director and the Adjudicator did not understand her fear; failed to conduct sufficient enquiry; failed to consider her claim properly and fairly; failed to explain their decisions clearly. 42.The Applicant now said there was a ‘lack of presentation’ in her earlier application for leave for judicial review in HCAL 345/2017. She gave no details. The Applicant had not made out a good reason for renewed application of judicial review. 43.The Applicant now worded her complaints differently. She even added an allegation that she was only served the appeal bundle shortly before the Board hearing. However, all these complaints could have been expressed or included in her previous application for judicial review in HCAL 354/2017. The Applicant had not done so. She could not do it now. 44.In the absence of a good reason for renewed application for leave for judicial review, the Applicant’s current action must be deemed as abuse of court process. Such unjustified application cannot be entertained. I need not and should not go on to consider the merits of her renewed application with respect to the decisions of the Director and the Adjudicator. Conclusion 45.I refuse to grant the Applicant leave for her unjustified renewed application for leave for judicial review. Dated 2nd day of August 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [6] The Judge’s Ruling in HCAL 345/2017, paras 14-20. |
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