Akter Shamima v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2552/2018

[2021] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2552 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 1985, is a national of Bangladesh.  She first arrived in Hong Kong in December 2013 to work as a domestic helper.  She again arrived in Hong Kong in July 2016 as a domestic helper.  Her employment contract was prematurely terminated on 31 July 2016, she did not depart and overstayed until she was arrested on 19 March 2017.  She then 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] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by (i) her brothers in law and members of Awami League (“AL”); (ii) her creditors.  She claimed that her family were supporters of the Bangladesh Nationalist Party (“BNP”) while her husband’s family were supporters of AL.  With her influence, her husband had gradually changed his affiliation to the BNP.  His brothers wanted to take over her husband’s property and vandalized their house.  His brothers and AL allies also burned down the shop of the applicant who borrowed money from creditors, including her sister in 2005 to establish her fabric and tailoring business.  The applicant had been assaulted by her husband’s brothers and her creditors.  To save her own life, she went to a training centre for six months of domestic helper training and subsequently came to Hong Kong in March 2014.  In late 2015 she learned that her husband was killed by her enemies.  In December 2015, after she returned to Bangladesh, 6-7 people from the AL came to attack her threatening that they would kill her the next time.  Again, to protect her life, she attended a domestic helper training course and then came to Hong Kong again in July 2016.

The Director’s decision

4.By a notice of decision dated 21 February 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 that there are no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband’s brothers, AL members and the creditors.  He found that state protection is available to the applicant and internal relocation is a viable option for her.  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 16 August 2018.

6.By a decision dated 9 November 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [60-71] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board found that the applicant is not a witness of truth and that she has either exaggerated or fabricated claims in relation to fearing harm from her brothers in law and her creditors, including her sister [60];

(2)  she has taken the circumstances of the estrangement of her husband’s family and the debt she has been unable to repay to strengthen her claims for non-refoulement [64];

(3)  based on the gaps, inconsistencies and other problems with the evidence, there is not a real risk the applicant would face any of the proscribed forms of harm should she return to her country [65-66].

8.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 13 November 2018 for leave to apply for judicial review. While she named “USM” as the proposed respondent, she quoted the decision of the Board. It is clear that the intended challenge is against the decision of the Board. I will deal with her application as one against the Board as the Respondent and the Director as the Interested Party.

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

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

Discussion

12.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.

13.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.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant finding her not a witness of truth. It found that she had either exaggerated or fabricated her claims in relation to her feared harms from her brothers in law and her creditors, by making use of the circumstances of the estrangement of her husband’s family and the debt she was unable to repay.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15.As explained above, the assessments of evidence and risk of harm 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.

16.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. 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.

17.Indeed, the applicant delayed in lodging the claim for protection after the termination of her employment contract and she only made her application for protection after she overstayed and was arrested.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

18.Further, even if one givesthe claimed account of events 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.

19.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.

20.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.

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

22.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.

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

Disposition

24.Accordingly, application for leave to apply for judicial review is refused.

Dated 4 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