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

HCAL 1089/2019

[2022] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 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 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”), which is on BOR 2 risk.

2.The applicant said in her affirmation that a hearing would be required if her application for leave to apply for judicial review was not granted. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her. However, the applicant was absent without any prior notice to the court. Her application is therefore dealt with 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 as a foreign domestic helper on 9 August 2014.  However, her employment contract was terminated prematurely on the date of arrival.  She did not depart and had overstayed since 24 August 2014.  On 9 September 2014, she was arrested by the police.  On 11 September 2014, 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”).

5.According to the applicant, her father was a freedom fighter for the Liberation Army.  He was also actively involved in the Jatiya Party (“JP”).  He fought in the Bangladesh Liberation War (“the War”) from 26 March 1971 to 16 December 1971.  As a result, her father had disputes with Razakars, a militia who were against the independence of Bangladesh, and some AL members.  In 1991, her father lost his job as a general manager in a private company and, at the same time, JP’s ruling term ended.  From 1992 onwards, her father had been harassed by AL members for his refusal to join them.  From 2001 to 2006, the applicant recalled that her father was attacked and tortured.  To protect his family, her father left home.  Meanwhile, since 1993, the AL members harassed the applicant and her twin brother for her father’s whereabouts.  After her father left, the rest of the family members became their targets.  In late 2006, her twin brother also left home.  Thereafter, the applicant was almost kidnapped by the AL members on two occasions and her family were threatened and harassed even when they moved to Dhaka.  In 2014, the applicant’s mother died and her younger brother also went missing after he told the applicant that he was beaten several times by the AL members.  Out of fear, the applicant eventually fled to Hong Kong for protection.  The details of her claim are set out at paragraphs 7 to 107 of the Notice of Decision dated 21 May 2015 by the Director (the “Director’s First Decision”) and paragraph 16 of the decision dated 28 April 2017 by the Board (the “Board’s First Decision”) as described below.       

The Director’s Decisions

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 First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk.  The reasons for dismissal were that (i) the lack of real intention to harm or kill her from the AL members indicated an unlikelihood of future risk of harm [116]; (ii) there was no state involvement [117]; (iii) she did not endeavor to seek protection from the police [118]; (iv) her immigration record was inconsistent with the conducts of someone who genuinely sought protection [119]; (v) her accounts were illogical [120]; (vi) state protection would be available to her [121]-[122]; and (vii) internal relocation was a viable alternative [123].

8.For reasons set out in the Notice of Further Decision dated 16 October 2017 that there was no evidence to show that her right to life would be violated upon her return, the Director also rejected the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).  

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board.  On 13 October 2016, the Board conducted an oral hearing for her appeal, during which she answered the inquiries from the Board.  Having considered the applicant’s evidence, the Board found that parts of her evidence lacked credibility.  For example, it was implausible that the AL members would ask her father to join them 21 years after the end of the War; her father would have been 55 or 60 years old when the AL asked him to join them; on the applicant’s own evidence, the AL members who allegedly harassed her father were only teenagers; the applicant agreed that the AL members simply harassed and teased her; she also agreed that the verbal threats were common; she also stated that her purpose of coming to Hong Kong was to work [19].

10.Further, after considering the country of origin information, the Board found that state protection was available to her [22]-[24].  In any event, internal relocation was not unduly harsh for the applicant [31]-[34].  Thus, by way of the Board’s First Decision, the Board dismissed her appeal against the Director’s First Decision.

11.In the Board’s Second Decision, the Board recapped the applicant’s additional information filed before the Director [6].  It further considered the applicant’s grounds of appeal [11].  However, the Board found that the applicant’s aforesaid arguments were bare allegations.  There were no supporting facts as to why she could not return to her country or why the government was not a democratic government.  As a result, the Board agreed with the Director that the BOR 2 risk was not engaged in her 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 24 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

13.In her affirmation in support of her application, the applicant stated she wanted to set aside the Board’s Decision and she would require a hearing if her application is refused on paper.

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 raised any valid reason 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 16^th day of June 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