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

HCAL 868/2019

[2022] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 868 of 2019

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 18 March 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 entered Hong Kong on 12 July 2013 as a foreign domestic helper. Her employment contract was terminated prematurely and she departed on 4 April 2014. On 2 May 2014, she returned as a foreign domestic helper but her contract was again terminated on 5 October 2014. She did not depart and had overstayed since 20 October 2014. On 9 June 2015, she was arrested by the police. On 18 June 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”) and an influential businessman called Haji Dulal Shah (“Haji”).

5.According to the applicant, she joined the Jamaat-E-Islami (“JEI”) in around 2010 as an ordinary member and only attended meetings and rallies organized by the party. In several occasions, the AL members threatened and assaulted the applicant for her refusal to leave JEI. In around 2011, Haji, whose family members were connected to the AL, asked the applicant to marry him. Met with the applicant’s refusal, Haji started to harass her family. In around late 2011, the applicant was abducted and attacked by the AL members again for refusing to leave JEI. Feared of the AL’s threats and attacks, as well as Haji’s harassment, the applicant eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 7 December 2017 by the Director (the “Director’s Decision”) and paragraphs 28 to 51 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 VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“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 on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) she only sought protection after her limitation of stay in Hong Kong expired [16]; (iii) she never attempted to seek help from the authorities which, according to the country of origin information (“COI”), were effective in protecting its citizens [17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 November 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [14].

9.The Board clarified the material aspects of the applicant’s claim with her at the hearing [52]-[70]. Having considered the applicant’s evidence, the Board found her to be an unreliable witness [71]. In particular, the Board found that the applicant made no reference as to being injured by the AL members during the encounters or her family being harassed by them [73]-[76]. It also noticed that the applicant provided vague accounts as to the abduction incident [77]-[80] and that her stories with Haji were improbable [81]-[91].

10.In assessing the applicant’s ground on Persecution risk, the Board found that her alleged injuries were not serious as she failed to provide any medical documents. It also observed that, from the country of origin information, the persons involved with the AL were held accountable for their illegal activities [93].

11.As a result, the Board rejected the applicant’s claim and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 29 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant enclosed the hearing bundle without setting out any specific ground.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.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.”

17.The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 31^st day of May 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