Begum Laila v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1804/2018

[2020] HKCFI 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1804 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent and by replacing the Board by the Director as interested party.

The applicant

3.The applicant is a national of Bangladesh. She came to Hong Kong on 13 February 2015 as a domestic helper. He employment was terminated prematurely and she overstayed without permission. On 12 January 2016, she surrendered herself to the Immigration Department. On 16 June 2016, she lodged a non-refoulement claim.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by (i) her husband’s creditors because she was unable to repay her husband’s loans and (ii) her husband as she had reported against him to the police.

5.She married her husband in November 2006. Her husband borrowed money from 6 or 7 creditors. The total amount was about HK$600,000. He was unable to pay his debts. The creditors came to her home to demand payment. Whenever she talked to him about his debts, her husband was furious and abused her by pulling her hair and beating her with stick. She complained to the police. Her husband suddenly disappeared. The creditors turned to her for repayment of the loans. She was told that her husband had married another woman elsewhere. She left her two children in orphanages and worked in Dhaka as a domestic helper. She finished her contract in May 2013. She could not return to her own place. She came to Hong Kong as domestic helper.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 20 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that from her past events, her future risk was low [12]; that state protection would be available to her [16] and that internal relocation was an option open to her [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 20 March 2018.

9.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, found that her evidence in relation to the past events was riddled with inconsistencies, discrepancies and omissions, the Board was unable to accept her evidence as credible [63] The Board refused to accept the events she claimed had happened. It came to a conclusion that she failed to establish her claim [72].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, she did not set out her grounds in support of her application. Nor had she pointed out the error committed by the Board in coming to its decision.

DISCUSSION

13.The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the appeal hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.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.

16.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 9^th day of July 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

Form CALL-1