Anzo Mosammat v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1352/2018 on BabelCite. This High Court CFI judgment was delivered on 25 February 2019.
1. This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board ”) with the Director of Immigration (“ the Director ”) as the interested party.
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HCAL1352/2018 [2019] HKCFI 414 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1352 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung): THE APPLICATION 1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party. The applicant 2.The applicant is a Bangladeshi national. She came to Hong Kong in January 2013 as a domestic helper and was allowed to stay here until 6 January 2015 or two weeks after termination of her contract, whichever was earlier. Her contract was prematurely terminated, but she overstayed without the Director’s permission. She surrendered to the Immigration Department on 6 August 2015. On 7 April 2016, she lodged her non-refoulement claim. 3.She claimed that if she were repatriated to Bangladesh, she would be harmed or killed by the members of the Awami League (“AL”) because she was a supporter of the Bangladesh Nationalist Party (“BNP”). Also, the Bangladesh police in the area would look for her for investigations into false cases against her. 4.In her statements to the Director, she said that she had been a supporter of BNP herself. When she and other BNP members were carrying out duties for the party, the AL members came to attack them. The police had also framed up cases against them. Because of this, she had moved to another city together with her family. However, the AL member found them and they had had a fight, in which her sister’s brother-in- law was killed. The police continued to look for her. Therefore, she came to Hong Kong. The Director’s Decision 5.The Director considered her application in relation to the following risks:
6.By Notice of Decision dated 20 December 2017 (“the Director’s Decision”), the Director refused her application for the reason that her non-refoulement claim was not substantiated. The Board 7.The applicant appealed to the Board. On 27 April 2018, she attended the Board and appeared before the Adjudicator. 8.Having considered her evidence, the Adjudicator by Decision dated 27 June 2018 (“the Board’s Decision”), refused her appeal and confirmed the Director’s Decision. 9.The Adjudicator found that the applicant’s evidence was not credible. See §41 of the Board’s Decision. He concluded that the applicant would not be at risk of any harm at the hands of the police or unspecified members of the Awami League if she were to return to Bangladesh. See §42. He also took the view that according to the Country of Origin Information (“COI”), the applicant could relocate herself within Bangladesh even if she were in danger. See §44. Application for leave for judicial review 10.By Form 86 dated 11 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision. 11.In her affirmation in support of her application dated 11 July 2018, the applicant set out the reasons in support of her application below:
DISCUSSION The Board’s Decision 12.At the hearing before me, the applicant confirmed that she had no complaint against the Immigration officer or the Adjudicator of the Board. She considered that they had treated her fairly. Her friend had helped her to understand the Hearing Bundle before the appeal hearing. 13.Ground (1) is her opinion without any evidence to substantiate it. It fails. 14.Grounds (2) to (4) collapse as she had refuted her allegations herself at the hearing. 15.As to ground (5) that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why she considers that the information is unreliable. 16.I find that the applicant was unable to show that the judicial review has any reasonable chance of success. CONCLUSION 17.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave. Accordingly, I dismiss her application. Dated the 25th day of February 2019
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] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
[3] See §21 |
Cases cited in this judgment