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

HCAL 2686/2018

[2021] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2686 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 11 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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.

3.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.

The applicant

4.The applicant is a citizen of Bangladesh. She came to Hong Kong as a domestic helper on 14 June 2014. Her employment contract was prematurely terminated. She overstayed and surrendered to the Immigration Department on 12 April 2016. She lodged her non-refoulement claim with the Immigration Department by a written representation on 28 June 2016.

5.The applicant claimed that, if refouled, she would be harmed by her uncle, Mazed, because of his disputes with her father. Their problem arose out of a piece of land jointly purchased by them and other two brothers. Mazed got his name and the two other uncles registered in the Land Office. Her father asked Mazed to give him his own share. Mazed refused to do so because he was not on good terms with her father. Over this dispute on the land, Mazed had gathered about 25 people to assault his father and her elder brother. As a result, her elder brother was injured and rendered handicapped. The matter was reported to police. But his father had no money to bribe the police officers. They did not investigate into the matter. Besides, Mazed was rich and he was related to the Awami League, a powerful ruling party in Bangladesh. Fearing that Mazed would harm him, her father arranged the applicant and her sister to leave Bangladesh by borrowing money from Mazed. She came to Hong Kong as a domestic helper. She keeps contacts with her father in Bangladesh. He advised her not to return to Bangladesh. Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.The Director considered his 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 Notice of Decision dated 28 February 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no reasonable likelihood that she would face the risk of harm from her uncle if she returned to Bangladesh [12]; that state protection would be available to her [16] and that internal relocation was an option open to her [19]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s decision

8.The applicant appealed to the Board against the Director’s Decision. She appeared before the Board on 10 September 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons that her evidence could not be relied upon; that there was no evidence that she suffered from physical harm; that there was no evidence that she would be at risk of any harm if she returned to Bangladesh and that there was no evidence to show that she had suffered harm amounting to persecution in the past and there was no substantial ground for believing that she would face a real risk of persecution. See §§60-67. The Board went further that even if she was able to establish that she would face real and genuine risk of harm as claimed, internal relocation was an option open to her. [83]

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 27 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that she would like to make judicial review the Board’s Decision as the Board had disregarded her dangerous situation in Bangladesh.

DISCUSSION

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

13.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.”

14.The applicant has not set out any error of the Board in the assessment of her case.  The grounds in support of her application do not assist her application as the Board had rejected her evidence, which the Board was entitled to do.

15.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.

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

CONCLUSION

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

Dated the 12^th day of May 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