Akter Mst Ety v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1107/2019

[2022] HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1107 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 Decision”).

2.The applicant stated in Form 86 “An oral hearing of this application under O.53, r.3(3) if leave is not granted on the papers.” Under O.53, r.3(3), the application is an ex parte application for which the court may determine without a hearing unless a hearing is requested in the notice of application. The court therefore treated it as a request for a hearing and a date was fixed for the hearing.

3.However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter dated 18 March 2022 to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

4.The applicant did not respond to the said letter.

5.Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.

6.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

7.The applicant is a national of Bangladesh.  She entered Hong Kong on 29 March 2014 as a foreign domestic helper.  Her employment contract was however terminated prematurely on 7 August 2015.  She did not depart within the limitation of stay and had overstayed since 22 August 2015.  On 2 November 2015, she surrendered to the Police.  On 5 November 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be killed by her parental uncle, her brother-in-law, her husband and the village chairman because of her extramarital affairs.

8.According to the applicant, she was arranged to marry her husband, a Muslim, in 2008.  She did not like her husband and fell in love with a man called Samin in 2010.  In March 2012, her husband found out about the affair and complained to the village chairman, who belonged to the Awami League (“AL”), about her interreligious affair with a Christian man.  The applicant claimed to be beaten by her husband around ten times and she was also threatened by the parental uncle and her brother-in-law due to her refusal to leave Samin.  Out of fear, she fled to Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 14 December 2017 by the Director (the “Director’s Decision”).     

The Director’s Decision

9.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, Cap. 383 (“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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that she would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) her problem was only a family problem and the alleged injuries sustained failed to attain the minimum level of severity [12]; (ii) her behavior was inconsistent with someone who faced genuine risk of harm and the alleged enemies had shown no real intention to seriously harm or kill her [13];[15]; (iii) no evidence showed that she was a target for AL [14]; (iv) state protection would be available to her [16]-[19]; and (v) internal relocation was also a viable option [20]-[21]. 

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 19 December 2018, the Board conducted an oral hearing for her appeal. 

12.Having considered the applicant’s evidence, the country of origin information and the relevant legal principles, the Board made the following findings.  First, the applicant’s evidence was inconsistent.  For example, she was contradictory as to whether she lived with Samin after their relationship [36].  Secondly, the Board found that there was no evidence to support the applicant’s claim, in particular, whether she would encounter the alleged problems because of her affair [37].  Thirdly, the COI showed that state protection was available [44]-[53].  Finally, the Board also considered that internal relocation to Dhaka or Khulna would be suitable to the applicant [71]-[77].

13.For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.    

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

14.The applicant filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

15.In her affirmation in support of her application, the applicant set out the grounds, which I shall summarize below.

(1)  Procedural impropriety/irrationality: failure to properly apply para.2 of the UN Committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant country of origin condition; failure to give sufficient for BOR 3 risk; failure to consider her fear that her family members would pursue and harm or even kill her.

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

DISCUSSION

16.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).

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

18.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.”

19.The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The grounds in paragraph 15 above do not assist her application. Ground (1) is only her opinion without evidence in support and in fact, the Board dealt with BOR 3 risk. Ground (2) is not relevant because she had not raised this issue with the Board according to the Board’s Decision. Up to this stage, she has not raise what psychological issue should be taken into account. She has to rely upon expert evidence on this issue, but there is none from her.

20.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.

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

CONCLUSION

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

Dated the 24^th day of August 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