Afroz Mst Sumi and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2279/2018 on BabelCite. This High Court CFI judgment.
1. This is the Applicants’ application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 September 2018. The Board had not made any decision bearing that date in respect of the Applicants, but had made one in respect of them dated 28 September 2018 (the “Decision”). In their supporting affirmation dated 19 October 2018, the 1 st Applicant annexed a copy of that Decision. Hence, it
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HCAL 2279/2018 [2022] HKCFI 2182 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2279 of 2018 Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge To:
Observations for the Applicant (Order by Deputy High Court Judge To): Introduction 1.This is the Applicants’ application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 September 2018. The Board had not made any decision bearing that date in respect of the Applicants, but had made one in respect of them dated 28 September 2018 (the “Decision”). In their supporting affirmation dated 19 October 2018, the 1st Applicant annexed a copy of that Decision. Hence, it is manifestly clear that the Applicants made a typographical error on the Form 86 and the subject matter of this application is that Decision. Leave was therefore granted to the Applicants to amend the date of the decision in respect of which leave to apply for judicial review was sought. 2.The 1st Applicant is a national of Bangladesh, now aged 35. She last entered Hong Kong on 30 November 2015 to work as a foreign domestic helper. Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authorities on 12 January 2016. On 31 March 2016, she lodged a claim for non-refoulement protection. She gave birth to her daughter, the 2nd Applicant, in Hong Kong on 7 November 2016. She lodged a claim for non-refoulement protection in respect of the 2nd Applicant on 26 January 2017. 3.In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 25 September 2017, the Director rejected their claims under all four applicable grounds. 4.They appealed to the Board against the decision of the Director in the Notice. By its Decision dated 28 September 2018, the Board dismissed their appeal. On 19 October 2018, they applied for leave to apply for judicial review of the Decision of the Board. 5.As the 2nd Applicant is a minor, the 1st Applicant who represented her had been advised by letter of this Court dated 31 December 2021 to seek legal representation whether by the Duty Lawyer Service or private solicitors. Five and half months have since lapsed. They did not respond. No memorandum of such application for legal aid had been received from the Director of Legal Aid. The Applicants had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing. The Applicants’ case 6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, they claimed that they would be at risk of harm by the Bangladeshi police loyal to the Awami League (“AL”) for having participated in a protest against AL and by and the 1st Applicant’s three distant uncles for having defaulted in their loans. 7.The 1st Applicant was born in District Thakurgaon of Bangladesh and had received 10 years of education up to High School level. She had been unemployed since her graduation. She has one daughter with her ex-husband who was being taken care of by her mother in Bangladesh and another daughter in Hong Kong, namely the 2nd Applicant. She has lost contact with her ex-husband after their divorce. 8.The 1st Applicant joined the Bangladesh Nationalist Party (“BNP”) in 2004 as an ordinary member. She attended rallies, strikes and meetings held at the district of Thakurgaon. She took part in a joint protest with Bangladesh Jamaat-e-Islami in February 2013 against the death sentence passed on the Jamaat-e-Islami leader. She was involved in setting fire to buses and throwing stones at vehicles. When the police arrived, five adults and a young boy were shot down by the police. The 1st Applicant fled the scene without sustaining any injury. 9.The police arrived at her home to look for her that night. As she had fled her village before the police arrived and avoided arrest. She stayed with her paternal uncle in Tangail for about two years. During that time the police also visited her uncle’s home looking for her but she was not there. The police told her uncle that she had been identified as a participant in the protest and there would be consequences for sheltering her but did not say what action would be taken against her. 10.The 1st Applicant felt she could no longer stay with her uncle and moved to stay with her maternal grandfather instead. She stayed there for about 1 to 2 weeks. Nothing eventful happened, though she heard that the police had come the area every day and detained members of BNP and Jamaat-e-Islami. 11.The 1st Applicant borrowed BDT 200,000 from three distant uncles who lived in her maternal grandfather’s village. They charged her a monthly interest of 10% and she was required to settle the loan in six months. They told her that she would be handed over to the police if she failed to repay the loan. She used the money to pay an employment agency in Bogra. After staying there for three months’ training, she came to work in Hong Kong. Unfortunately, she was diagnosed with hepatitis B and her employer dismissed her instantly. The finding of the Board 12.The Board considered the number of inconsistencies and contradictions in the 1st Applicant’s evidence was sufficiently serious as to undermine the reliability of her story[5]. For example, in her written signification, she alleged that her uncles “will likely kill [her] when [she goes] back to the country”. But in the NCF she merely said that the uncles would hand her over to the police if she could not repay the loan. During the screening interview, she said that her uncles would harm her if they could get a hold of her. In her NCF, the 1st Applicant alleged that she was a supporter of BNP, but during the screening interview, she said she was a member. 13.The Board found that the 1st Applicant had adduced no, or no reliable evidence to show[6]:
14.On her evidence, the 1st Applicant did not know the purpose behind the police visits to her and her uncle’s home. She made no enquiries from the police but claimed that she was in fear of being killed or shot dead by the police. She must be referring to the police shooting during the protest and the subsequent police visits to her and her uncle’s home looking for her. Her concern was that the police were loyal to AL and she was a target of AL. On the basis of credible Country of Origin Information (“COI”), the Board found that the Bangladesh police does not appear to be so intrinsically tied to AL[7]. The 1st Applicant admitted her criminal participation in the protest. As the Board rightly observed, persons fleeing from punishment will not normally be regarded as refugees, as a refugee is a victim of injustice, not a fugitive from justice[8]. Hence, the Board found that the 1st Applicant’s belief that the authorities wished to detain, harm or kill her for what she did during the protest was pure speculation on her part. It was not based on her own experience but on hearsay evidence from her sister. There was also nothing to suggest what the police would do to her if her uncles handed her over to them. 15.Applying the law applicable to non-refoulement protection under the USM to the above finding of fact, the Board found the Applicant had failed to prove the factual basis to support her claim for protection under any of the four applicable grounds under the USM. 16.In respect of Persecution Risk ground, the Board found the Applicant had never been ill-treated by her uncles because of the loan or by the police in connection with her protest. Even if she had been ill-treated, it was not for a reason under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion. On the basis of credible COI, the Board found that the Bangladesh police did not appear to be so intrinsically tied to AL. She could have made attempts to deal with the enquiries from the police and remedy the situation. The Board also found that state protection would be available to protect her from harm from her uncles or from abuses by the police[9]. 17.In respect of BOR 2 Risk ground, the Board held that BOR 2(2) to (6) risk is not engaged as it is not the 1st Applicant’s case that she had committed any criminal offence for which she would face capital punishment. She has also not adduced any evidence that she would otherwise be arbitrarily deprived of her life as to invoke BOR 2(1) risk. 18.To prove BOR 3 Risk ground, the 1st Applicant must establish that there are “substantial grounds for believing” or “strong grounds” for believing that if removed from Hong Kong she would face a “real risk” of being subjected to torture, cruel, inhuman or degrading treatment or punishment. On the evidence, the 1st Applicant has not been subjected to such ill-treatment. On that basis the Board found she had failed to substantiate that she would face a genuine risk of being subjected to ill-treatment under BOR 3 Risk. 19.As for Torture Risk ground, the Board was not satisfied on the evidence that AL party or Bangladeshi government has specifically targeted the 1st Applicant as evidenced by the fact that she was able to use her Bangladesh passport to leave the country through official immigration channels. The Board also found that the ill-treatment she received or likely to receive upon her return failed to meet the elements of torture as defined in section 37U of the Immigration Ordinance as there was no issue of state acquiescence or failure of due diligence on the part of the Bangladeshi government. 20.On the basis of credible COI, the Board was also satisfied that state protection is available. It was only the 1st Applicant’s choice not to seek police assistance. 21.In the further alternative, even if any of the risks were real, the Board found that internal relocation is a viable option to avoid the risk of harm. 22.For the above reasons, the Board confirmed the decision of the Director in the Notice and dismissed her appeal. The legal principles applicable to judicial review 23.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. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[10]. Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court could only focus its attention on possible criticisms of the Decision on the basis of error of law, unreasonableness and irrationality. Grounds for judicial review 24.The Applicant did not put forward any grounds in her Form 86 or her supporting affirmation. She had been invited by the Court via its letter dated 20 October 2020 to advise the Court of her first language, contact number and to file submissions. She did not respond. The letter was sent by post to her address as stated in her Form 86 dated 19 October 2018. It has not been returned through the post. She never informed the court of any change of address. There is nothing to suggest that she had not received the letter or had moved. She was deemed to have abandoned her right to make submissions. Discussion 25.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her and the 2nd Applicant to return to their home country, which, in effect, is a challenge of the Board’s finding of fact that they would not face any real harm or risk if returned to Pakistan. 26.The 2nd Applicant was born in Hong Kong, now five years of age. She had not been subjected to any ill-treatment as that allegedly suffered by the 1st Applicant. The 1st Applicant had not adduced any evidence or advanced any argument that the 2nd Applicant would face any real risk of harm other than collateral risk for being her daughter. Hence, the 2nd Applicant’s claim is hinged on the 1st Applicant’s. 27.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; and observed a very high standard of fairness. Because of significant inconsistencies and contradictions in her evidence, the Board found the 1st Applicant incredible and that she failed to prove the factual basis of their claim for protection. In essence, the Board found that the risk of harm she and the 2nd Applicant would face upon their return to Pakistan is low. It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicants had failed to discharge their burden of proving their fears and risks. This is a finding of fact solely 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 and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicants’ claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Conclusion 28.For the above reasons, leave to apply for judicial review was refused. Dated 20th day of July 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] Paragraph 41 of the Decision [6] Paragraph 42 of the Decision [7] Paragraph 55 of the Decision [8] Paragraph 29 of the Decision [9] Paragraph 56 of the Decision [10] [2018] HKCA 524 at [14(1)] |
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