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

HCAL2575/2018

[2019] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2575 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

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 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 had come to Hong Kong for twice and raised a non-refoulement claim.

3.In support of her claim, she claimed that if she returned to Bangladesh, she would be harmed or killed by her husband.

4.In her statements given to the Director and the Board, she said that she was tortured by her first husband back in Bangladesh because her father was unable to pay him the dowry. When her father paid him money, he asked for more. She was able to earn money in Bangladesh, but she could not have savings. So, she came to Hong Kong where she married another Bangladeshi, who was sentenced to prison for dangerous drug charge.

The Director’s Decision

5.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By Notice of Decision dated 18 May 2018, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 13 September 2018.

8.By Decision dated 5 November 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and came to the conclusion that she would not be at risk of any harm if she returned to Bangladesh and there was not a real risk or real chance that she would face any harm if refouled as she claimed. She came to this conclusion having considered the following matters:

“…the significant inconsistences in the evidence, the lack of documentary evidence … and the delay in applying for non-refoulement protection all lead me to find that the Appellant is not telling the truth about her claims…. [89] …I consider that the inconsistencies are significant and together with the Appellant’s failure to report the attacks on her to the police and her failure to provide any documents in support of her claims, including medical evidence…reflect adversely on the Appellant’s credibility and the reliability of her evidence. [92]”

10.The Board also considered that internal relocation is an option open to her [94].

Application for leave to apply for judicial review

11.In her Form 86 dated 16 November 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.

12.In her affirmation in support of her application dated 16 November 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)  the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)  she was confused at the appeal hearing;

(4)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI.

DISCUSSION

The Board’s Decision

13.The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also said that her lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

14.I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

15.It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim.

16.Grounds (1) to (3) above are inconsistent with what she said in court. Ground (4) is her opinion without any evidence in support of it.

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 the judicial review. Accordingly, I dismiss her application.

Dated the 26^th 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

Form CALL-1