Khanom Mosammad Amina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2265/2018

[2021] HKCFI 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2265 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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1986, is a national of Bangladesh.  According to immigration records, she first arrived in Hong Kong in June 2013 to work as a domestic helper.  Her employment contract was terminated on 2 January 2015 and she overstayed since 17 January 2015.  On 3 January 2017, she was arrested by immigration officer for overstaying and taking up unapproved employment.  She was convicted and sentenced to 8 weeks’ imprisonment.  On 10 February 2017, she lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [6.4-6.19] of the decision of the Director.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her ex-husband, Tariqul, who is a member of the ruling party Awami League (AL) because the applicant joined his rival political party, Bangladesh Nationalist Party (BNP).  She claimed that after her marriage in 2008, Tariqul did not work and used up her dowry from her family for his political party as well as for gambling and drinking.  He often demanded money from her and beat her up when she did not meet his demand for money.  His family members also assaulted her.  She could not bear with it any more and moved back to stay with her parents taking her son with her in 2012.  Tariqul threatened over the phone saying that he would kill her for her leaving him.  Later she came to know Bokul who was a leader of the BNP.  She joined his party.  Tariqul learned that she had become a member of BNP.  He threatened her over the phone asking her to quit supporting BNP.  She received a “divorce letter” from Tariqul about one month after she had left him.  On one evening at the end of 2012, she was kidnapped by 4-5 men and taken to a jungle, where She saw Tariqul there and Bokul was tied to a tree.  They killed Bokul and forced her to grab the neck of Bokul’s body when Tariqul took pictures of them with his mobile phone.  They assaulted her as well.  She managed to escape and was later admitted to a hospital.  She went to stay with her aunt and left her country after she had finished her 4-month training as a domestic helper.

The Director’s decision

4.By a notice of decision dated 30 May 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him, which further lower the level of risk.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 5 September 2018.

6.By a decision dated 15 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.  The Board gave detailed reasons for rejecting the applicant’s claim.  In a nutshell, the Board found her “narrative” of events not credible [170-176].  It did not accept her evidence about Tariqul’s profile and the ill treatment inflicted on her by Tariqul and his family members as credible [73].  Nor did it accept her account about the incident in the jungle.  It found Bokul to be a fictitious character.  The murder of Bokul is an invention.  The Board did not accept that she had ever been ill treated by Tariqul or any AL supporters on account of her political affiliation with the BNP.  In any event, internal relocation is a reasonable option for her.  In conclusion, the Board determined that the applicant is not at risk and Tariqul poses no threat to her.  Her appeal was dismissed on all relevant grounds.

Application for leave to apply for judicial review

7.The applicant filed a Form 86 on 19 October 2018 for leave to apply for judicial review of the decision of the Board.

8.No request for oral hearing has been made.  The application is therefore considered on the papers.

9.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

Discussion

10.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

11.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

12.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the core facts of her account based on the inconsistencies and implausibility of her evidence.  It did not accept that the applicant had been assaulted and threatened by her ex-husband.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  In any event, the Board found that internal relocation is a reasonable and viable option for the applicant.

13.As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

14.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest that the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.

15.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Indeed, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for his life and safety.  It could be taken into account as damaging the applicant’s credibility.

17.Further, even if one gives her account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating only a remote and unreal risk of future harm.  She is already divorced from her ex-husband.  There was no valid reason why he would still wish to pursue her after so many years.

18.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

19.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

20.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

21.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

22.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

23.Accordingly, leave to apply for judicial review is refused.

Dated 2 February 2021

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