Yasmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1607/2018 on BabelCite. This High Court CFI judgment was delivered on 26 June 2020.
1. The applicant entered Hong Kong legally as a foreign domestic helper on 12 September 2014, but overstayed when her employment contract was terminated. She surrendered to the Immigration Department on 21 May 2015. The applicant submitted a non‑refoulement claim by way of written representation on 11 March 2016. Her non‑refoulement claim form was submitted on 30 August 2016.
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HCAL 1607/2018 [2020] HKCFI 1345 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1607 OF 2018
Application for Leave to Apply for Judicial Review Following:
Orders by The Honourable Mrs Justice Campbell‑Moffat:
Observations for the Applicant: Procedural history 1.The applicant entered Hong Kong legally as a foreign domestic helper on 12 September 2014, but overstayed when her employment contract was terminated. She surrendered to the Immigration Department on 21 May 2015. The applicant submitted a non‑refoulement claim by way of written representation on 11 March 2016. Her non‑refoulement claim form was submitted on 30 August 2016. 2.The applicant attended a screening interview on 23 September 2016. The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 18 October 2016. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr James John Jolliffe (“the Adjudicator”), heard her appeal on 8 March 2018. He considered her appeal on all applicable grounds and dismissed her appeal on 8 May 2018. 3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 August 2018, which was five days out of time. An extension of time to apply for judicial review is allowed. The applicant did not request an oral hearing. The matter was therefore considered on the papers. Background 4.The applicant is a Bangladeshi national. She was born on 10 March 1985, in Sadapur, Bangladesh. The applicant’s claim principally arises out of an abusive arranged marriage, which she entered into at the age of 12. According to the applicant, from the beginning, her husband had no job and gambled. Although she says she went to live with her husband’s family, she says he did not provide her with food and he beat her. She later gave birth to two children of the marriage but her husband then married another woman and she felt that she could not divorce him even though the relationship had broken down. Eventually, the applicant went to live in accommodation provided by a charity with her younger child, whilst the elder child was looked after by her mother‑in‑law. The husband lives with his second wife. The applicant maintains that she did report one incident of abuse to the police and that it proceeded to trial but that her husband failed to appear. Later, they mediated a settlement in which the applicant was given the mother‑in‑law’s house in return for dropping the prosecution. After that, the husband sought to regain the property and threatened to kill the applicant if she did not return it to him. As she feared for her life, the applicant left to work in Dubai and then Oman for three years, during which time, her children were placed in an orphanage. When she returned to Bangladesh, the applicant says she went to live with her husband once more in order to protect her mother who had been the subject of abuse from him. She then set up a beauty parlour but by then her husband had become a drug addict and alcoholic, which made him more violent and therefore she left to come to Hong Kong. In order to do so, the applicant borrowed money from a local bank, which she has not repaid and she maintains that the bank has been chasing that payment by means of criminal intimidation. The non-refoulement claim 5.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:
6.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that she is the subject of such risk. Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears. Decision of the Adjudicator 7.The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. He set out in some detail the various complaints raised by the applicant, which centred upon her husband’s ill-treatment. It was only in the hearing before the TCAB that the applicant first mentioned that she had divorced her husband prior to coming to Hong Kong. Subsequent to her arrival in Hong Kong, she had re-married to a Hong Kong resident. Her complaints were synthesised by the Adjudicator to fear of harm from her ex-husband over the property dispute; fear of harm from him as a member of the Awami League (“AL”) and fear of imprisonment because of the debt she owed to the bank, which she had not repaid. In the hearing she finally admitted that her husband was not an office holder within AL and merely socialised with members of AL. As to the latter complaint, she retracted her earlier allegation that the bank had been making use of criminal intimidation to recover its monies. She confirmed that the only person who had harmed her whilst in Bangladesh had been her ex‑husband and that her children had been in a religious school which also acted as an orphanage. When asked their respective ages, she had said they were 8 and 10 years of age, when they were in fact 17 and 19. In all, the Adjudicator found that the majority of the allegations made by the applicant were unsupported and at variance with her earlier evidence before the Director. Her answers were vague and at times found to be untruthful. Leave to apply for judicial review 8.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them. Grounds of review 9.There were no grounds of review. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. Conclusion 10.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. She clearly had not told the truth to the Director and the basis of her claim had shifted substantially by the time she was before the Adjudicator. There is no criticism of his determination, which was open to him on the facts and eminently reasonable. 11.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review. Dated the 26th day of June 2020.
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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