Case Document

100%Judiciary

HCAL2584/2018

[2019] HKCFI 2221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2584 of 2018

BETWEEN

	Shapla Mst	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	The Director of Immigration	Putative Interested Party

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”) with The Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a Bangladeshi national. She came to Hong Kong on 16 December 2016 and was permitted to stay as a domestic helper until 30 October 2018. Her employment contract was terminated prematurely. She overstayed and was arrested by police on 18 January 2017. She was referred to the Immigration Department for investigation the next day. She lodged her non-refoulement claim on 8 January 2017.

3.In support of her claim, she claimed that if she was to return to Bangladesh, she would be harmed or killed by her creditor, Jamil Hosen (“JH”) because she was unable to repay the loan. She also claimed that she would be arrested by the Bangladeshi police because there was a false drug trafficking case against her.

4.In her statements given to the Director and the Board, she said that she got married in 2008. In 2010 , she bought a car for delivery service. She hired another man but in fact, they shared the profit for the business. In March 2016, police came t her house to make enquiry because they fund drugs in her car , which was being detained. The inspector in charge of this case demanded 200,000 Bangladeshi take for release of her car. She borrowed the money from Jamil and passed the money to her husband who paid to the inspector. But the inspector did not return the car to her. She was unable to pay interest on the loan to Jamil. Jamil went to her house to demand payment and threatened to kill her if she did not pay. Her husband was at that time at home. He fled to Dhaka himself. She moved to live in her sister’s house in July or August 2016 for four months. She decided to get training to be able to work in Hong Kong. On 15 December 2016, she left for Hong Kong.

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 14 February 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 10 September 2018.

8.By Decision dated 12 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, having assessed her evidence given to the Director and before it, found that her evidence had a lot of inconsistencies in relation to when she bought the taxi [64], the incident of the police coming to her house for the drug allegation [66] and when and where she stayed after the police had come to look for her in March 2016 [69]. The Board had come to a conclusion that it had no confidence in accepting and it did not accept her evidence about what occurred to her in Bangladesh. It found that it was based entirely on her personal or actual experience and that it was embellish, exaggerated and fabricated in part to create a claim to be owed protection. [83] The Board did not accept that the applicant owed money to any person or group in Bangladesh, and it did not accept that she or any member of her family had ever been subject to a threat or any form of harm for reasons of her owing money to any person or group in Bangladesh. [85]

Application for leave to apply for judicial review

10.In her Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

11.In her affirmation in support of her application dated 16 November 2018 and the attachment to Form 86, the applicant relied upon the following grounds:

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

b.  the contents of the hearing bundle were in English and she was unable to obtain interpreter service and she was confused at the appeal hearing;

c.  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk to torture in future and had applied the wrong standard of proof;

d.  the Adjudicator had applied the incorrect standard of proof;

e.  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and his knowledge was not updated;

f.  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

g.  the Adjudicator had cherry-picked and give undue weight on the irrelevant material , neglecting the materials favourable to her case;

h.  the Adjudicator had not considered USHR 2010, USHR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011 , which is favourable to her case;

i.  the Adjudicator failed to fulfill his obligation to obtain the requisite documents for his adjudication;

j.  the Adjudicator was wrong in state protection in her country;

k.  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and;

l.  BOR 2 risk was not assessed without screening.

DISCUSSION

12.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. Her lawyer had explained the Director’s Decision to her. She also reads English and she understands the Board’s Decision.

13.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. I had put the Board’s findings above to her for her comment. She had no comments.

14.Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

15.Ground (3) does not sustain as she does not have the absolute right of legal representation throughout different stages of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

16.Grounds (4) to (11) are her opinion without any evidence in support of them.

17.Grounds (2) fails too as this issue was not raised before the hearing.

18.Ground (13) is irrelevant because BOR 2 risk was assessed together with the other risks in the same screening.

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 19th day of September 2019

	(Thomas WAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19/09/2019 Shapla Mst Applicant’s ref. no: Nil.		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 19/09/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10490/18/2/374/B1173 The Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3554/17 (formerly RBCZ 10286/17) (T5S98) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)