Akther Mst Rama v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 538/2019

[2022] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 538 of 2019

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 (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 4 February 2019.

2.The Applicant had worked as a foreign domestic helper in Hong Kong since February 2014.  She last arrived in Hong Kong on 27 February 2015 and was permitted to remain until 27 February 2017 or two weeks after termination of her employment, whichever the earlier.  Her employment was prematurely terminated on 19 September 2015 and she overstayed since 4 October 2015.   On 4 May 2016, she surrendered to the Immigration Department and lodged her claim for non-refoulement protection on 7 July 2016.

3.In due course, her claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the in the Notice dated 20 September 2017, the Director of Immigration (“Director”) rejected her claims.  She appealed against the decision Notice.  Her appeal was dismissed by the Board’s Decision.  She now seeks leave to apply for judicial review of that Decision. 

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service.  In gist, her case is that, if refouled, she would be harmed or killed by her husband who is a leader of Awami League (“AL”) because she is a supporter of Jamaat-e-Islami Bangladesh (“JIB”) and refused her husband’s demand to join AL.

5.The Applicant is a national of Bangladesh, now aged 33.  She had received 10 years’ education.  She worked as a tailor at home from 2008 to 2012.  From 2014 to 2015, she worked as a foreign domestic helper in Hong Kong.  She had also worked in that capacity for some time in Bangladesh.  She and her parents’ family are supporters of JIB.  She helped in recruiting members and attended party meetings.  She married her husband through marriage arrangement.

6.The Applicant’s mother-in-law expected a dowry of 80,000 Taka, but her parents could only pay 50,000 Taka.  Her mother-in-law was not satisfied and ill-treated her by beating her with bare hands, broom or chair.  Her husband likewise beat her and burned her hands with hot cooking utensils while she was cooking.  He is a drug addict and prone to ill-treat her when under influence of drug.

7.Her husband is a prominent AL leader.  He asked the Applicant to join AL, but she refused because she is a supporter of JIB.  Her husband was angry.

8.The Applicant submitted to the ill-treatment because she did not want her son to be brought up in a broken family.  However, her husband sent her son to live with her parents because he did not want the Applicant to be too close to her son or to breastfeed him.

9.In 2012, the Applicant’s husband broke her mobile phone and banished her from his house for having received a call from her aunt.  The Applicant then moved to live with her parents.

10.Enraged by the Applicant’s refusal to join AL, her husband threatened to force her to return to him and join AL.  He caused AL members to make threatening calls to the Applicant five to six times demanding her to join AL.  The Applicant refused.  Then, someone threw stones at her parents’ house. 

11.On 10 May 2012, the Applicant was accosted on the road by her husband and six AL members.  They slapped her and assaulted her with wooden sticks when she refused to return to her husband’s home.  She fainted.  Some passers-by took her to a doctor for treatment.  After that she returned to her parents’ home and recovered in 15 to 16 days.

12.On 15 July 2012, the Applicant was intercepted in the street by her husband and four AL members.  Her husband showed the Applicant her nude photos and videos and demanded 100,000 Taka otherwise he would post them on the internet.  He slapped her and she fell down.  Some passers-by took her to a doctor who prescribed her some medicine.  The Applicant then returned to her parents’ home.

13.Since then, her husband called and blackmailed the Applicant for money and sex every seven to ten days.

14.The Applicant and her father made a report of the assault of 10 May 2012 and blackmail on 15 July 2012 at the Ghoraghat Police Station.  The police refused to take action as her husband was a member of AL.  When the Applicant went to make another report a second time, the police asked for a bribe.  The police took no action because she did not pay. The Applicant believed she could obtain no assistance from the government or non-government organisations because her husband is a member of AL.

15.On 2 August 2012, the Applicant’s husband and his gang threatened the Applicant’s parents and vandalised their home.  He demanded 100,000 Taka and for the Applicant to return to him.  The Applicant escaped to jungle and then to her aunt’s home to take refuge for the night.  At her aunt’s suggestion, she went to receive training as a foreign domestic helper and came to work in Hong Kong on 12 February 2014.  She did not consider internal relocation an option because her husband could locate her with his AL network.

16.While in Hong Kong, her parents told her that her husband threatened them verbally, that he was still looking for her and had sent one of her nude photos to them as a threat.

The finding of the Board

17.The Applicant gave evidence before the Board.  The Board found her evidence vague and inherently incredible.  She changed her evidence as to whether she had worked as a domestic helper in Bangladesh before.  The Board found her evidence incredible and attached very little weight to it.  Nevertheless, the Board assessed her claim on the basis of the case as she asserted and in the light of the Country of Origin Information (“COI”). 

18.On the Applicant’s case, the Board considered the ill-treatment she suffered did not attain the degree of severity to fall within the definition of “torture” under section 37U(1) of the Immigration Ordinance.  It found the husband’s purpose in ill-treating the Applicant while she was cohabiting with him was to assert his control over her as an abusive husband, or to force her to return while she was banished.  These purposes were not among any of the listed purposes in the section or connected with the state’s interest or policies.  Though AL was the ruling party at the material time, the husband’s membership or position as a leader by itself did not confer upon him the position of a public official or person acting in an official capacity because the dispute itself was domestic. Primarily for these reasons, the Board found that the ill-treatment does not qualify as “torture” within the meaning of the Ordinance.  Furthermore, on the basis of the COI, the Board was satisfied that state protection is available and there are avenues open to the Applicant to address her concerns in relation to police corruption, inaction to complaints of domestic violence or taking side with members of the ruling party.  It was the Applicant’s choice not to seek protection out of her unfounded belief.  On the basis of the COI, the Board found internal relocation a viable option and that it would not be unduly harsh for the Applicant to relocate to other areas in Bangladesh.  Hence, the Board found she was not eligible for protection under the Torture Risk ground.

19.At the hearing, the Applicant confirmed that she had no fear of her right to life being at risk on her return to Bangladesh.  Hence, the Board rejected her claim under BOR 2 Risk ground.

20.In respect of BOR 3 Risk ground, the Board found on the basis of the Applicant’s case that the treatment in the past had not attained the minimum level of severity and the Applicant had not been subjected to cruelty, inhuman, degrading treatment or punishment as defined under that ground.  Hence, the Board found the Applicant would not face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 Risk.

21.On the Applicant’s case, she was able to stand up for herself since leaving her husband and to resist his demands for her return or to join AL or to resist succumbing to his blackmail, and her husband had not been able to locate her once she left the immediate vicinity of her parents’ home area.  In view of the above together with passage of time, the Board considered the risk of any feared ill-treatment is low.  Hence, it dismissed her claim for protection under Persecution Risk ground,

22.Accordingly, the Board found the Applicant was not entitled to protection under any of the four applicable grounds under the USM and dismissed her appeal against the Notice.

The applicable legal principles          

23.The role of the court in judicial review is not to re-assess the non-refoulement claims 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

24.The Applicant filed a Notice of Application for Leave to Apply for Judicial Review (Form 86) consisting of 21 pages and a six-page supporting affirmation.  The Court had seen similar applications and affirmations in other cases.  Obviously, these documents were generated from a template as many of the arguments and allegations had no bearing even to the case as asserted by the Applicant.  The Applicant advanced the following four grounds in page 5 of the Form 86:

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

These grounds are all mixed and intertwined.  For example, the Applicant treated misdirection in the law as the basis of a complaint for procedural unfairness and irrationality.  In the analysis that follows, when dealing with a major ground, the Court had not lost sight of the intertwined grounds, though they were not specifically mentioned. For example, if there is no misdirection on the law, it must necessarily follow that there is no basis for complaint of procedural unfairness and irrationality on the basis of misdirection.

25.At paragraph 1 on page 16 of her Form 86, the Applicant made an allegation of misdirection on the law.  At paragraph 8 on page 17, she complained about the Board applying the wrong standard of proof.  These complaints are distinct from the four grounds stated above.  The Court treated this alleged misdirection on the law as her fifth ground.

26.She complained at page 18 of the Form 86 under “Procedural Impropriety/Unfairness” that the Board “failed to take sufficient steps to obtain further COI research materials to fully understand and, as such, to put proper weight on the relevant facts, namely the human rights situation in Bangladesh, …”.  She also complained at page 20 that the Board has significantly relied on news which is not officially recognized or is hearsay, and cases which are out-dated, resulting in the Board making groundless speculations that it was safe for her to return to Bangladesh.  The Court understood that by ‘news’ and ‘cases’ the Applicant meant COI mentioned by the Board in the Decision.  The Court treated her first complaint as her elaboration of her second ground, ie procedural unfairness; and her second complaint of erroneous reliance on COI as her sixth ground.

27.There are two main thrusts in the Applicant’s supporting affirmation filed on the same day. First, in paragraph 11 on page 4, she complained about procedural unfairness in that the hearing bundle which was in English was only given to her a few days before the hearing with an intervening weekend of two days.  Second, in paragraph 12 on page 4, she complained about late delivery of the hearing bundle as elaboration on her second ground of procedural unfairness and her complaint about lack of legal and language assistance as her seventh ground.

28.Thus, altogether the Applicant has advanced seven grounds for her application for leave to apply for judicial review.  The three additional grounds are:

(5)  misdirection on the law;

(6)  erroneous reliance on the COI; and

(7)  lack of legal and language assistance.

It would be convenient to consider the seventh ground first followed by the second ground and then the other grounds in numerical order.

Ground (7) - Lack of legal and language assistance

29.In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v. Sakthevel Prabakar[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or Persecution Risk has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.

30.At paragraph 9 on page 17 of the Form 86, the Applicant alleged that “the failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and she was afforded a fair procedure.”  She did not particularise “the failures”.  She admitted that she was legally assisted in the preparation of her NCF and was legally represented at the screening interview.  In the absence of particulars, this complaint could only be treated as a bare allegation.  It is impossible to explore into this complaint.

31.At paragraph 1 on page 19 of her Form 86, the Applicant complained that she was not given legal assistance in preparing her notice of appeal to the Board and at the oral hearing before the Board.  As mentioned above, a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings.  The Applicant had the benefit of legal assistance in preparing her NCF and legal representation at the screening interview. All the benefit that legal assistance could have afforded her were presented to the immigration officer at the screening interview, which were then presented before the Board.  The Board is under a duty to observe a very high standard of fairness.  In that way, her interest was safeguarded.  The Applicant was not prejudiced by reason of lack of legal assistance in preparing her notice of appeal or lack of legal representation at the appeal before the Board.

32.Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[13], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of having any documents fully translated into her first language for her benefit.

33.Though the hearing bundle is in English, it is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  The information in the NCF and record of interview were provided by her.  She knew the contents of these documents.  The Notice of the Director is in English and, unfortunately, no translation was provided.  It was issued to her on 20 September 2018 but it was not until 2 October 2018 that the oral hearing was held. The Applicant cannot expect these documents be fully translated for her.   She had in between the issue of the Notice and the oral hearing more than a year to read and understand the Notice and seek assistance from among her own circle, if necessary.  She also had the services of an interpreter at the oral hearing before the Board. 

34.Taking a global view of the circumstances, nothing amiss arose from the lack of legal and language assistance in the preparation of her appeal or lack of legal representation in the oral hearing before the Board.  The Applicant suffered no prejudice at all.

Ground (2) – Procedural unfairness

35.The Applicant’s submissions relating to this ground were spread all over her Form 86.   Most of the submissions are bare assertions without particulars.  At the hearing, she was asked to particularise the unfairness.  She admitted that she was provided with an interpreter and allowed to address the Board freely.  She actually confirmed that there was no procedural unfairness.  What she disagreed with was the outcome of the Decision because she did not want to return to Bangladesh.  Despite that admission, the Court dealt with this ground insofar as sufficient particulars were provided in her Form 86 or her affirmation.

36.In paragraph 7 at page 17 of the Form 86, she argued that the Director’s and the Board’s failure to call for psychological and psychiatric evaluation amounted to procedural impropriety.  The Applicant had never complained about psychological or psychiatric ill-treatment or that she is suffering from such condition as a result of the ill-treatment.  There was also no record of any request for such examination.  This complaint is unsubstantiated.

37.At paragraph 4 on page 19 of her Form 86, the Applicant complained that her appeal was dismissed by the Board on 4 February 2019, but she did not receive the Decision until 21 February 2019 and despite she had requested to be orally informed of the Decision by phone, the Board did not do so.  Even assuming what she alleged is true and even if she were informed of the Decision by phone on 4 February 2019, that could not reverse the Decision.  She suffered no prejudice at all.

38.In paragraphs 11 to 15 at page 4 of her supporting affirmation, she complained that the majority of the documents in the appeal bundle used before the Board were in English, but were only given to her a few days before the hearing including an intervening weekend of two days.  She did not have the funds to engage the services of an interpreter or sufficient time to prepare for the hearing due to her limited skills in English and the fact that she was unrepresented.  Her complaint about lack of legal and language assistance has been disposed of in the above section.

39.As for the Applicant’s complaint about the shortness in time between the service of the hearing bundle on her and the oral hearing before the Board, it must be noted that the single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused her non-refoulement claims.  She had been served that Notice for over a year before the hearing.  As for the other documents, the information therein was provided by her, although reduced into English.  She must be familiar with the information she provided.  Viewed in that context, six days was short, but not so inadequate as to amount to procedural unfairness.  She had over a year to read and understand the Notice. She should have exercised due diligence in preparing for her appeal before the Board than to indulge in the leisure of the weekend and then complain about procedural unfairness due to lack of time.  If she indeed need more time, she could have raised that with the Board, but she did not.

40.In paragraph 17 at page 5 of her supporting affirmation, she complained it was unfair to make a decision relating to BOR 2 Risk without holding a screening interview by the Immigration Department.  This is factually incorrect.  She attended a screening interview on 15 September 2017 during which the immigration officer made inquiries with her in relation to all four applicable grounds under the USM including the BOR 2 Risk ground.  Usually, no separate interview specifically or solely relating to BOR 2 Risk ground was held.  The Director’s decision in the Notice was partly based on that interview.  The record of interview was before the Board at the appeal.  The Applicant had not advanced any argument why an additional or separate interview was required in relation to BOR 2 Risk ground.

41.In paragraph 18 at page 5 of her supporting affirmation, the Applicant alleged that there are many more unacceptable and unexplainable grounds but gave no particulars.  As was confirmed by the Applicant at the hearing there was no procedural unfairness. All that she was complaining was that the decision did not meet her expectation.  The Court was unable to identify any other basis to support a complaint of procedural unfairness.

Ground (1) – Unlawful exercise of discretion

42.Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection.  This could not be a valid ground.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notices and dismiss her appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  Having rigorously examined the Decision and the papers in the light of the grounds, the Court was satisfied that there were no such vitiating elements in the Decision.

Ground (3) – unreasonableness and irrationality

43.The Applicant said that the basis of her allegation under this ground is that the Decision did not meet her expectation. Her complaint could only be treated as an overall or general complaint of irrationality and unreasonableness in the Board’s finding.  This ground is therefore a complaint against the finding of fact by the Board.  As mentioned above, the function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  

44.In paragraph 6 at page 17 of the Form 86, the Applicant accused the Board of taking into account and putting weight on irrelevant matters or considerations that were factually incorrect and failing to take into account and putting weight on facts and inferences which were favourable to the Applicant and hence arrived at the Decision which is irrational.  Other than a complaint of misdirection on the law (which is considered under Ground (5) below), she did not identify the relevant or irrelevant matters complained of.  It is impossible to explore into her un-particularised complaint.

45.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Even though the Board found the Applicant not credible, it assessed her claims on the basis of the case as she asserted.  She could not have any complaint on that approach.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

46.The Applicant did not particularise the duty and the breach.  In the light of the conclusion reached in respect of the other grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Ground (5) – Misdirection on the law

47.In paragraph 1 on page 16 of her Form 86, the Applicant argued that the Board misdirected itself on the law by taking into account that the Applicant had to have experienced torture in the past in order establish substantial grounds to believe that there was a risk of torture in the future.  The Applicant must be referring to paragraphs 187 and 188 of the Decision in which the Board held in relation to BOR 3 Risk:

“187. On the evidence, the treatment in the past had not attained the minimum level of severity. [The Applicant] had not been subjected to torture or cruel, inhuman, degrading treatment or punishment as defined under BOR 3.

188.     Having considered all the evidence and material, it is not accepted that [the Applicant] would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 risk.”

48.It is well established legal principle that the burden of proof lies on the claimant seeking non-refoulement protection: see section 37ZA(1) of the Immigration Ordinance and UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Part Two para 196.  To invoke protection under BOR 3 Risk ground, a claimant must show (1) that the ill-treatment he would face if refouled attains a minimum level of severity and (2) that he faces a substantial risk of being subjected to such ill-treatment: see Soering v United Kingdom[14].

49.The standard of proof is a degree of likelihood or a “real risk” of harm if refouled: see Sivakumaran, R (on the application of) v Secretary of State for the Home Department[15].  This test was approved by our Court of Final Appeal in Ubamaka v Secretary For Security[16].  A crucial issue is whether the claimant’s fear is well-founded.  In Sivakumaran, the House of Lords held that a fear of persecution is well-founded if it is shown objectively that there is a reasonable degree of likelihood that the claimant would be persecuted if refouled to her own country. 

50.Whether a claimant’s fear is well-founded and has been established is a finding of fact.  In making this finding, the ill-treatment suffered in the past is usually a reliable indicator of the risk in the future.  The approach in assessing whether the past ill-treatment can be an indication of future risk was stated by Brooke LJ in Karanakaran v Secretary of State for the Home Department[17] as follows.  The decision-maker shall take into account all material considerations when making his/her assessment about the future risk.  The decision-maker must not exclude any matters from consideration when assessing the future unless those matters can be safely discarded because there is no real doubt they did not occur.  When assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another.  The decision-maker has to reach a well-rounded decision as to whether, in all the circumstances there is a serious possibility that there will be persecution or torture (depending on the context).  This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum seeker’s welfare if they should, in the effect, occur.  Thus, to assess the future risk, it is usually proper to take into consideration the past ill-treatment by balancing it against all other material circumstances.  As for the weight to be given to each circumstance, it is a matter for the decision-maker.  It would be a misdirection to make a finding of future risk solely because of a finding of past ill-treatment, without taking all the circumstances into account.

51.Before reaching its conclusion in paragraph 187 and 188, the Board had referred to Article 7 of the International Covenant on Civil and Political Rights and Soering v United Kingdom in paragraphs 79 and 80 of the Decision respectively.  It referred to the two requirements in Soering v United Kingdom in paragraphs 183 of the Decision and summarised the material facts in paragraph 184 to 186 of the Decision.  The Board had properly directed itself on the law and the factual circumstances.  It then found in paragraph 187 that the past ill-treatment suffered by the Applicant even according to her own case had not attained the minimum level of severity under the first limb in Soering v United Kingdom.  Then balancing that ill-treatment against all the other circumstances quoted in paragraphs 184 to 186, it concluded that the Applicant failed to prove she would face a genuine and substantial risk in future.  That fact finding process accords with the approach in Karanakaran.  The weight to be given to each of the material consideration is solely a matter for the Board.  The Board could not be criticised for having reached a conclusion adverse to the Applicant.

Ground (6) - Erroneous reliance on COI

52.The Applicant made numerous and repeated complaints of procedural impropriety or unfairness or irrationality in pages 16 to 20 of her Form 86 by reason of the Board’s reliance on outdated COI which is not officially recognized or is hearsay, resulting in the Board making groundless speculations that it is safe for the Applicant to return to Bangladesh.  The Board did refer to the COI.  The COI are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: Bangladesh published by the United States Department of State; Country Information and Guidance, Bangladesh: Background Information including actors of protection and internal relocation, November 2014 published by the United Kingdom Home Office; Report of the Special Rapporteur on violence against women its causes and consequences, Rashida Manjoo Addendum: Mission to Bangladesh (20-29 May 2013) published by the United Nations Human Rights Council; Odhikar, Human Rights Report 2013; and other news reports and articles.  These COI are all from authoritative and credible sources.  The information is contemporaneous and not outdated. Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board would carefully consider the information and give it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

53.At page 18 of her Form 86, the Applicant accused the Board of failing to take sufficient steps to obtain further COI research materials and in particular failed to take into account (a) USHR 2010, (b) USRF 2010 and (c) Report on the International Commission of Jurists Mission to Bangladesh, Autumn 2011.  The Applicant submitted that “had these reports been considered by the Board the content therein would have provided sufficient COI corroborated the Applicant’s version of events and legitimate fears.  It would have also been sufficient to support finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection.”  These reports are not exhibited or not available in the website.  There is no evidence that the Director of the Board had been referred to these COI.  Other than a bald assertion that the COI are unreliable, outdated and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention her failure to provide any publication contradicting those COI.  The Court considered there is no merit in this ground.

Conclusion

54.For the above reasons, in particular paragraph 45, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

Dated 15^th day of February 2022.

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

[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

[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”)

[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

[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

[5] [2018] HKCA 524 at para 14(1)

[6] cacv 2/2018, (unreported) 23 March 2018

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007

[13] CACV 78/2018

[14] [1989] ECHR 14, para 100

[15] [1987] UKHL 1 (16 December 1987), [1988] AC 958

[16] FACV No 15 of 2011, para 174

[17] [2000] EWCA Civ 11 (25 January 2000)