Yeashmin V.Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 820/2018 on BabelCite. This High Court CFI judgment was delivered on 18 March 2019.
1. The Applicant is a national of Bangladesh. She is now aged 33 (DOB: 13 April 1985).
Cited by 3 cases · Cites 4 cases
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HCAL820/2018 [2019] HKCFI 679 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 820 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 33 (DOB: 13 April 1985). 2.The Applicant claimed she would be killed by her husband Rana, her husband’s family, the family of her husband’s second wife and members of the Awami League (“AL”). 3.The Applicant said she came from a family that supported the Bangladesh Nationalist Party (“BNP”). She joined BNP at the age of 16 or 17. She was not an active participant. 4.The Applicant married Rana in 2001. Rana and his family supported another political party called the Awami League (“AL”). The Applicant only found that out after marriage. The Applicant also only revealed her affiliation with BNP in 2003 when she had to vote. Her husband’s family persuaded her to support AL. The Applicant refused. She was then assaulted repeatedly by her husband and parents-in-law. They wanted her to leave BNP. They even threatened to kill her. Rana had injured her with a knife. 5.The Applicant later left Rana with their daughter. She went to live with her parents. 6.One day in 2004, the Applicant was attacked by Rana and some AL people at the end of a BNP gathering. She was severely injured and hospitalised for 20 days. She could not walk for a month due to the injuries. 7.The Applicant stayed with her parents between 2004 and 2008. Her parents-in-law then persuaded her to go back to Rana. The Applicant returned home. Rana threatened her again when she went to attend BNP rallies. 8.The Applicant soon found out Rana had married another woman called Sharmin, who was the daughter of an AL leader. Sharmin wanted to move in to live with Rana. She threatened to kill the Applicant if the latter would not leave Rana. 9.Rana disliked the Applicant's continued affiliation with BNP. They argued. In October 2009, the Applicant left Rana again. She went to live with her parents till early 2013. She avoided contacting Rana. The Applicant heard Rana and Sharmin’s family wanted to kill her so she moved to Shiddirganji in March 2013. 10.In December 2013, the Applicant encountered Rana, Sharmin and Sharmin’s brothers in the street. They tried to kill her but the Applicant managed to escape. She decided to leave Bangladesh. 11.On 18 March 2014, the Applicant left Bangladesh for Hong Kong to work as domestic helper. Her employment contract was prematurely terminated on 7 February 2015. She overstayed from 22 February 2015. The Applicant was arrested a year later on 12 March 2016. She raised a non-refoulement claim subsequently. 12.The Applicant said Rana and the AL people continued to look for her and harass her family. Her parents’ house was burnt down. Her family members went into hiding and she lost contact with them. 13.The Applicant said the Bangladesh authorities were corrupt and AL was in power. There was no state protection for her. 14.The Applicant claimed AL had a large network in the country so internal relocation was not viable. 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 16.On 11 May 2018, the Applicant applied for leave for judicial review. Timeline 17.Things happened in this order: –
Respondents 18.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 19.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 20.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only. The Director's decision 21.In his decision dated 31 October 2016, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. The Board's decision 22.The Applicant appealed to the Board. The Adjudicator interviewed her on 22 February 2018. 23.The Adjudicator considered it odd that while claiming to have participated in BNP’s activities and voted in election, the Applicant could not name her constituency. The Adjudicator found the Applicant's evidence unconvincing in many places, including Rana’s parents asking her to return without revealing that Rana had married Sharmin. It was also unconvincing that the Applicant would remain with Rana in the complained situation until October 2009. The Adjudicator did not accept Rana and Sharmin’s brothers would attempt to kill the Applicant in the street in broad daylight and the latter could manage to escape. 24.The Adjudicator noted the Applicant had added the allegation that Rana was also an AL leader. 25.The Adjudicator did not find the Applicant's claim credible. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, he found internal relocation was viable in the Applicant's case if there was any risk. 26.On 2 May 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 27.In her affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 20 above, I would deal with the current application in relation to the Board's decision only as the Director's decision had gone on appeal to the Board for rehearing. 28.The Applicant complained the Adjudicator failed to conduct sufficient inquiry of relevant country-of-origin information ("COI"); cherry-picked COI which did not reflect the true situation in Bangladesh; failed to consider her psychological strain; failed to consider the issues of state protection and state acquiescence; wrong to find she faced no risk and failed to give reasons for the assessment of BOR3 risk. Court hearing 29.The hearing took place on 16 August 2018. The Applicant was in person. A Bengali interpreter provided service in court. 30.The Applicant said a lawyer helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to her grounds. 31.The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim. Discussion 32.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 33.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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
34.The Applicant complained the Adjudicator failed to consider her case properly and relied on wrong COI to reject her claim. She said the Adjudicator had no basis to find she faced no risk and failed to give clear reasons for his decision on BOR3 risk. 35.The Adjudicator’s report showed the Adjudicator studied the Applicant's case in detail. He referred to relevant COI. He had proper basis to conclude the Applicant's claim was incredible. He did not accept the Applicant had any risk that warranted non-refoulement protection. The Adjudicator gave clear reasons for his decision, which must be read as a whole to understand why he was not satisfied the Applicant had any torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, he found internal relocation was viable in the Applicant's case. 36.As the Applicant’s claim was found to be incredible, her alleged fear or psychological strain was not a real issue. The Adjudicator also need not consider state protection or state acquiescence because there was no risk. 37.There was no evidence the Adjudicator cherry-picked COI or relied on inaccurate information concerning Bangladesh. 38.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 39.The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review. Dated the 18th day of March 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
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/3/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, |
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] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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