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

HCAL 211/2019

[2022] HKCFI 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 211 of 2019

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 16 January 2019 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 national of Bangladesh.  She last entered Hong Kong on 27 June 2014 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 14 December 2014.  She did not depart and had overstayed since 29 December 2014.  On 31 December 2014, she was arrested by police.  On 3 January 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the Awami League (“AL”) in her locality.

5.According to the applicant, she lived in Dhaka and was a supporter of Jamat Islam Party (“JIP”).  Her husband was also a supporter of JIP and participated in a rally in May 2013 to demand the AL for the release of a JIP leader.  Thereafter, her husband was brutally murdered and her house burnt down by the AL members.  She also sustained injuries but no open wounds.  Later, when she reported the incident to the police, she was raped by the police officers.  She also learnt that her father-in-law, who also participated in the rally, was kidnapped by the AL members.  Out of fear, she fled to Hong Kong for protection.  Details of her claim are set out in paragraph 8 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”) and paragraph 18 of the Board’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the absence or low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [19]-[22]; (ii) no sufficient grounds were present to show that the alleged enemies intended to seriously harm or even kill her [24]-[28]; (iii) state protection would be available to her [29]-[39], and (iv) internal relocation was an option open to her [40]-[48].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  She complained that the Director did not make enquiry sufficiently into the country of origin information (“COI”) which suggested that the AL was the ruling party and intended to seriously harm or kill her, a JIP supporter [36].  On 13 September 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter and answered the Board’s inquiries [37].

9.The Board explored the material aspects of the applicant’s claim and sought clarifications from her [37]-[94].  Having considered her evidence, the Board found that she was an untruthful witness [99].  The Board observed that there were significant inherent inconsistences in her evidence, such as her husband’s political affiliation, his role within the group and whether he was killed by AL [100]-[106].  It also cast doubt on the applicant’s claimed political affiliation [107]-[115].  Further, her claim of being raped also varied in her statement and oral evidence [116]-[117].  In light of these inconsistencies which the applicant failed to give cogent explanations, the Board refused to accept her evidence [118]-[122].  In any event, the Board considered the COI and found that internal relocation was available to the applicant [123]-[125]. 

10.Thus, the Board rejected the applicant’s claim and dismissed her appeal. 

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

11.The applicant has filed Form 86 dated 23 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant stated:

(1)   Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions and failure to state sufficient reasons for BOR2 and BOR3 risk assessment;

(2)   Error /misdirection in law: failure to take into account of psychological strain and threats to her personally or threats to her directly to kill her.

(3)   No sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15.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.”

16.Those grounds under paragraph 12 above are her personal opinions without any evidence in support of them. It is clear the adjudicator had put a lot of questions to the applicant and she did answer them. Based on the reasons given by the Board, the Board was entitled to come to its conclusion as it did. The issue of psychological strain was not raised before the Board.

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

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

CONCLUSION

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

Dated the 25^th day of April 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