Kamrunnahar Mstv v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1722/2018 on BabelCite. This High Court CFI judgment was delivered on 20 June 2019.
1. This is the applicant’s application for leave to apply 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.
Cited by 3 cases
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HCAL1722/2018 [2019] HKCFI 1564 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1722 of 2018 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 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 to apply 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 arrived in Hong Kong on 23 July 2014 as a domestic helper and was allowed to stay until 23 July 2016. Her employment contract was prematurely terminated and she was required to depart by 6 September 2014. She overstayed without the Director’s permission. She surrendered to the Immigration Department on 5 November 2015. She lodged a non-refoulement claim on 29 November 2016. 3.In her statements given to the Director and the Board, she claimed that because her father was unable to pay the dowry for her marriage, her husband assaulted her shortly after the marriage. He kicked her in her abdomen when she was pregnant. He was an alcoholic and did not work. He continued to attack her after the birth of their daughter. She stayed with him for a short time and moved back to live with her parents. She went to Dhaka to work as a domestic helper for two years. Her husband was looking for her at her family. Upon her friend’s advice, she came to Hong Kong in 2014. The Director’s Decision 4.The Director considered his application in relation to the following risks:
5.By Notice of Decision dated 24 November 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that it was unsubstantiated. The Board 6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 10 May 2018. 7.By Decision dated 10 August 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision. 8.The Board proceeded to consider the applicant’s case and found that it accepted that the applicant was subjected to domestic violence from her husband and his family on a number of occasions during the period that she lived with them [45]; that she was subjected to physical and psychological violence in that period and that it was her desire to leave her husband and his family that was the main motivation to leave Bangladesh and come to live and work in Hong Kong [47]. It was on these bases, the Board considered her claim. 9.The Board, having carefully considered the relevant legal principles and the facts accepted, finally came to the decision that neither the Bangladeshi police and the state were involved in the incidents [61 & 62]; that the harm that the applicant feared from her husband would not come within the definition of torture under section 37U (1) of the Ordinance [63]; that there was state protection for the applicant in Bangladesh [75]; that relocation was also an available option for the applicant [79]; that the Board did not accept that the applicant had a well-founded fear for persecution [87]; and that she would be subjected to the BOR 2 risk [88 & 89]. Application for leave to apply for judicial review 10.In her Form 86 dated 23 August 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 23 August 2018, the applicant relied upon the following grounds:
DISCUSSION The Board’s Decision 12.The applicant appeared before me. She confirmed that she was able to speak freely before the Immigration officer and the Adjudicator was also fair to her. The Director’s Decision was explained to her by the duty lawyer, and her friend had explained the hearing bundle to her before the appeal hearing. 13.I put the Board’s findings above to her for her comments. She said that she had no money to pay the police officers or for relocation. 14.Grounds (1) (2) and (3) fail as they are inconsistent with what she said before this Court. 15.Ground (4) does not sustain because it is only her opinion without any evidence in support of it. 16.The Board had found the facts and applied the appropriate legal principles and the relevant Conventions to her case. There is nothing amiss in the analysis as it is clearly a family matter which should be handled by the applicant’s country. The Country of Origin Information clearly states that Bangladesh has available remedies to redress her problems. 17.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review. CONCLUSION 18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for intended judicial review. Accordingly, I dismiss her application. Dated the 20th day of June 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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