Akther Mosammat Fatema v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL2619/2018

[2019] HKCFI 2222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2619 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions 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 the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and The Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of Bangladesh. She had come to Hong Kong and left between 2014 and 2016. On 14 October 2016, she came again as a domestic helper. She was permitted to stay until 14 October 2018. However, her employment was terminated prematurely. But she overstayed and was arrested by police on 15 July 2017. She lodged her non-refoulement claim on 19 July 2017.

3.In her statements given to the Director and the Board, she claimed that if she was to return to Bangladesh, she would be in danger due to political problem. She was a member of the political party Jamayat-Islamic/ Jamaat-e-Islami (“JI”) and she had been tortured by members of the rival ruling party Awami League (“AL”).

4.She claimed that she joined the political party Jamayat-Islamic/ Jamaat-e-Islami (“JI”) in 2011. In May 2013, she joined a congregation of several parties including BNP and JI opposing the ruling government party Awami League (“AL”). The government used security force and arrested the people. There was deaths and injuries. She was able to flee unhurt to Comilla. Her father told her that the police had a list of people at the congregation, whom they would arrest. She was on the list. She move to live in her friend’s house in Bogura. In December 2014, she took her father’s device and came to Hong Kong for employment.

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 under RC”).

6.By Notice of Decision dated 20 March 2018 (“the Director’s Decision”), the Director rejected 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 12 June 2018.

8.By Decision dated 12 November 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that there were inconsistencies between her statement and her oral evidence at the hearing [68]. The Board found that the applicant was not a truthful witness [86]. The Board did not accept that the applicant was a supporter or member of JI; that she attended a protest rally with JI supporters in Dhaka in 2013 or at any other time; that the police and/or people related to or affiliated with AL or any authorities in Bangladesh had come to her home looking for her; that she was involved in politics in Bangladesh [87]. The Board therefore did not accept that there was a real risk the applicant would suffer ill-treatment or that anyone would threaten or harm or kill her for the reasons she claimed [88].

10.In a nutshell, the Board did not believe the facts as alleged by the applicant in support of her claim.

11.In her Form 86 under Order 53, rule 4 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

12.In her affirmation in support of her application dated 21 November 2018, the applicant relied upon the following grounds:

(1)     procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)     procedural impropriety/irrationality: failure to [give] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of BOR 3 risk;

(3)     error/misdirection in law: failure to consider psychological strain and threats to her personally;

(4)     the Board and the Director failed to consider the actual situation, the general election this year and the AL government would be against opposition and they killed three leaders and members of JI party; and

(5)     no sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

DISCUSSION

The Director’s Decision

13.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

14.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15.The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her and her friend had explained the Board’s Decision to her.

16.I put the Board’s findings to her and asked her if she had any comments. She simply said that she still had problems in Bangladesh.

17.It is obvious that the Board rejected her evidence in support of her claim.

18.As far as the facts are concerned, the Board’s Decision is final as held by the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, at paragraph 42.

19.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

20.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 16th day of September 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