Hira Kaniz Fatema v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2298/2018

[2021] HKCFI 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2298 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant seeks leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 30 May 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 5 October 2018 (the “Decision”).   

2.The decision of the Director in the Notice is not subject to judicial review because there are in place procedures for appeal against the Director’s decision to the Board.   In fact, the Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if she is entitled to, would adequately protect her interest.  The Court therefore treated her application as an application for leave to apply for judicial review of the Decision of the Board dated 5 October 2018 and her complaints against the Director as being directed at the Board as well.

3.The Applicant is a Bangladesh national.  She came to Hong Kong to work as a domestic helper in July 2013.  On 26 January 2018, she sought non-refoulement protection, claiming that she would be at risk of being killed by the Awami League (“AWL”) political party if she were returned to Bangladesh.  In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely:

(1)  risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”);

(3)  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(4)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”).

4.By a Notice of Decision dated 30 May 2018, the Director rejected her application for non-refoulement protection.  The Applicant appealed to the Board on 6 June 2018.  Her appeal was dismissed by the Board on 5 October 2018.

5.On 22 October 2018, she applied for leave to apply for judicial review of the Decision of the Board. 

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service and incontrovertible evidence. 

7.The Applicant was born in 1987.  She is married and has two daughters.  She said that one day in 2012, her husband, Raju, was informed by her friends that he was framed with some false cases at Khalishpur Police Station.  It was then revealed that Raju had been involved in a political party called Jamaat-e-Islami party (“JIP”) and had grudge with the complainant from a opponent political party, the AWL.  Since then, AWL people visited her home looking for Raju, but Raju was not at home. On the third occasion, they vandalized her home.  Before they left, they warned her that if they could not find Raju again, they would kill her.  She did not report to the police because AWL was the ruling party. 

8.Due to the death threat, the Applicant fled to Dhaka to seek shelter at her maternal uncle’s home, leaving her two daughters behind.  She came to Hong Kong to work as a domestic helper from July 2013 to avert the risk.  However, her employment contract was prematurely terminated after two months on 5 September 2013.   She found alternative employment and started a new contract on 9 October 2013.  Again, her employment was prematurely terminated on 26 November 2014.  Since then, she became an over-stayer. 

9.Some time in 2014, the Applicant learned that Raju had returned home.  The Applicant asked him to look after the daughters.  Raju then moved them to another village.  At the time, she did not know Raju had settled his issues with the AWL people.

10.In 2016, she was told by her mother that Raju married an underage girl, Riya.  However, Riya’s parents threatened to file a case against Raju and Riya had to leave him.  The Applicant was upset and made a phone call to Raju.  Raju accused her of conspiring with Riya’s parents and provoking them to file a case against him. Raju threatened to kill her if she went back to Bangladesh.  She dared not return to Bangladesh as Raju is a very violent and unforgiving person and had beaten and maltreated her before.

11.On 20 September 2017, the Applicant was arrested at a restaurant.   She was convicted of using a forged identity card; breach of condition of stay by overstaying; and breach of condition of stay by taking up unapproved employment.  She was sentence to 15 month’s imprisonment on 22 September 2017.  On 26 January 2018, while in prison custody, she lodged her non-refoulement claim.

12.The Applicant maintained contact with her mother.  She was told by her mother that Raju was still looking for her and checking with her parents if she had returned.  Her mother told her that Raju’s brother and friends urged her sisters to tell them her whereabouts or else they would abduct them.  They warned her via her sisters to withdraw Riya’s parents’ case against him as he guessed she paid money to Riya’s family in order to file the case against him.  She phoned Raju to explain, but Raju ignored her.   She dared not return to Bangladesh because of Raju’s threat.  She said Raju’s brother worked in the government and his friends were JIP members.

13.Initially, the Applicant’s case was that she fled from home to Dhaka and then to Hong Kong because of threat from AWL people.  Later, she learned from Raju that he had settled his issues with AWL people.  But she did not return to Bangladesh because of Raju’s threat.  The Applicant’s case is a case of fear and risk arising out of matrimonial dispute only.

The finding of the Board

14.In essence, the Board found the Applicant an incredible witness and rejected her evidence.  Much of the Applicant’s case of threat is based on hearsay evidence and speculation.  The Board considered the weight to be attached to such evidence was greatly reduced.   The Applicant was inconsistent in her evidence.  When asked why she ran the risk of allowing Raju to take care of her children if Raju still had issues with AWL people, she said Raju had told her that he had settled his issues with AWL people.  That was inconsistent with her evidence that at the time she asked Raju to take care of her children she did not know Raju had settled with AWL people.  The Board also considered her case of threat from Raju inherently improbable.  It was Riya’s family which filed the case against Raju.  If Raju wanted to have the case withdrawn against him, he should approach Riya’s family.  The Applicant was in Hong Kong, she could do nothing to cause Riya’s family to withdraw the case.  Similarly, Raju could do nothing to harm the Applicant if she refused to persuade Riya’s family to do so.

15.On the totality of the evidence, the Board found the Applicant’s intention to seek protection in Hong Kong suspicious. There was ample of evidence to support the Board’s suspicion.  The Applicant did not return to Bangladesh when her contract was prematurely terminated in November 2014 when there was no more threat from AWL people and Raju had not threatened her with death.  Having rejected her factual case, the Board found there was no evidence to support the Applicant’s claim for protection under the four applicable grounds.

16.In respect of the Persecution Risk ground, the Board accepted the Applicant as a member of a social group for the purposes of the Refugee Convention and that ill-treatment which the particular women feared was by reason of their membership of that group.  The Board also accepted the Country of Origin Information (“COI”) news reports that the Bangladeshi government has taken practical steps to monitor the conduct of the police and official; to provide various avenues to seek justice and to enhance their performance and professionalism.  The Board was satisfied that state protection is available to deal with the Applicant’s fear.

17.In respect of the BOR 2 Risk ground, the Board was not satisfied that the Applicant has proved that she would face a real risk of being deprived of her right to live if refouled to Bangladesh.

18.In respect of the BOR 3 Risk ground, from the past injuries suffered by the Applicant, the Board was not satisfied that the ill-treatment, whether physical or mental, would attain a minimum level of severity as to qualify for protection.  Further, the Board was satisfied that state protection of a reasonable standard is available to deal with the risk.

19.In respect of the Torture Risk ground, the Board found there was no evidence that the Applicant will suffer foreseeable, real, personal and present risk of being tortured if she were refouled to Bangladesh.

20.All these are finding of facts and credibility of witnesses which are solely within the realm of the fact finding tribunal, ie the Board.

Grounds of the Application

21.The Applicant advanced four grounds of appeal:

(1)  the Board erred in its finding of facts; its Decision is unfair and unreasonable;

(2)  the Director or the Board has failed to appreciate or give proper weight to the presence of state acquiescence; the Applicant was tortured at the behest of state law enforcement agencies as those in political circles;

(3)  the Director or the Board has failed to take her argument into account or failed to give enough weight to her argument and to the Country of Origin Information which supports her case of police corruption before reaching the Decision; and

(4)  the Decision was unfair and failed to attain the high standard of fairness required by the Wednesbury test.

Disposition

22.The role of The Court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

23.Under Grounds (1) and (4), the Applicant complained about unreasonableness and unfairness in the Board’s Decision and the Board’s failure to attain the high standard of fairness required by the Wednesbury test.  These two grounds may be considered together.   The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  The Board did not find the Applicant credible and accepted very little of her evidence.  It found that the Applicant has failed to discharge the burden of proving her fears and risks and failed to establish her entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   These are finding of facts and credibility of witnesses which are exclusively matters for the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court is of the opinion that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  An applicant has to prove not only that his fears and risks are genuine, but also they fall within certain criteria set out under the four applicable grounds.  On the fact, the Board was not satisfied that the Applicant has proved her fears and risks are genuine; and even if they are, they do not satisfy the criteria under the four applicable grounds. The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness or irrationality in its Decision.

24.Under Ground (2), she complained that the Board has failed to appreciate or give proper weight to the presence of state acquiescence and that the Applicant was tortured at the behest of state law enforcement agencies as those in political circles.  In fact, there was no such evidence.

25.Under Ground (3), the Applicant complained that the Board did not give enough weight to her argument about police corruption and COI.  The Board did consider the COI about police corruption and government’s effort in combating that problem.   The Board found no evidence that the Bangladeshi government would fail to discharge its duties or tolerate any unlawful and allusive behavior committed by any individual, government official and member of any political party as a systemic practice.  Having weighed the COI, the Board considered state protection of a reasonable standard available.  This is a finding of fact exclusively for the Board.  There were no errors of law, procedural unfairness or irrationality in such a finding.  There is no substance in this complaint.

26.The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, her application for leave to apply for judicial review is refused.

Dated the 23^rd day of April 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