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

HCAL 1138/2018

[2021] HKCFI 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1138 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 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:

THE APPLICATION

1.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.The applicant applies for leave to apply for judicial review of the Decision dated 22 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

4.The applicant a Bangladeshi national. She came to Hong Kong on 14 January 2014 to work as a domestic helper.  Her employment contract was prematurely terminated. She overstayed illegally.  She was arrested by polices on 17 July 2014. On 20 July 2014, she lodged her non-refoulement claim with the Director.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband (“H”) or H’s uncle, Rahman, from whom she had borrowed 130,000 taka in order to come to Hong Kong to work.  Now she had been dismissed by her employer and she is unable to pay back to Rahman.  Both H and Rahman are members of Awami League (“AL”). H is a local gangster, who smoked marijuana, made homemade bombs with several friends and had often beaten and slapped her.  H was unhappy that she had borrowed money from Rahman. He threatened her that if she returned to Bangladesh, he would kill her.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C 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 two Notices of Decision respectively dated 18 March 2015 and 18 August 2017, which will be called (“the Director’s Decision and the Director’s Further Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no substantial reason to believe that she would be harmed or killed by her husband or by Rahman if she returned to Bangladesh [12 & 13]; that state protection would be available to her [16] and that internal relocation was an option open to her [17].  The Director further found that she did not have the genuine and substantial risk of being tortured under BOR 3 [24], Persecution risk [27] or Torture risk [30]. There is no evidence that the state was involved [31]. In the Director’s Further Decision, the Director found that the applicant was unable to establish, by evidence, that she had a real risk under BOR 2 if she returned to Bangladesh [6].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision and attended the hearing on 24 January 2018.

9.The Board rejected her appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s evidence and found that:

(1)   it did not accept H or Rahman would be interested in locating her if she returned to Bangladesh [18];

(2)   it did not accept that the state was in any way involved [9];

(3)   it accepted the Director’s finding that an option of relocation was available to the applicant [15];

(4)   it did not believe that the applicant would be subjected to BOR 3 risk if she returned to Bangladesh [23];

(5)   it did not believe that the applicant would be subjected to BOR 2 risk if she returned to Bangladesh [25];

(6)   there was no substantial ground to believe that she would be subjected to Persecution risk if she returned to Bangladesh [29]; and

11.The Board further found that the applicant’s evidence was not credible because she did not raise her claim immediately after she had arrived in Hong Kong; that she was dishonest for illegally staying in Hong Kong and that there was no reason for her to take such a long distance to come from Bangladesh to Hong Kong instead of going to other nearer places.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 20 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that she applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision on the above risks. In her affirmation, she did not set out any specific reasons in support of her application. Nor did she refer to any other documents filed for this application. This Court shall, therefore, assess the Board’s Decision generally.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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 … … 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.The applicant has not set out any specific ground in support of her application. 

16.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 23^rd day of 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