Begum Shufia and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2446/2019

[2022] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2446 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 oral submissions by the counsel for the Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the Applicants to apply for Judicial Review of the Board’s Decision dated 25 July 2019 be refused; and

2.  Costs of this application be in the cause of the proceedings and the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant and the 3^rd applicant, collectively called (“the children”) who were twin boys born on 28 May 2006 in Bangladesh, currently aged 16. This is their joint application. The children’s applications rely upon the facts of the 1^st applicant.

2.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 25 July 2019 (the “Board’s Decision”).

3.At the hearing before this Court, the applicants were represented by Ms Denise Souza, counsel on the instructions of Messrs. Haldanes assigned by the Director of Legal Aid.

4.Form 86 was amended and the 1^st applicant had filed her 2^nd affirmation pursuant to an Order of the Court dated 26 January 2022.

5.It is noted that throughout the processing of their applications before the immigration officer and the Board, the applicants were legally represented.

6.It is further noted that an Order dated 16 July 2022 was made by this Court to stay the proceedings of this case pending the result of CACV 159/2019, which was delivered by the Court of Appeal on 24 June 2021. The appellant in CACV 159/2019 is the husband of the 1^st applicant. According to the solicitor acting for the applicants when the application was made, the grounds raised in the appellant’s non-refoulement claim are directly linked and/or intertwined with those raised by the applicants in this case and the outcome of the appeal case will have a direct and material impact on confirming the correct approach that ought to have been taken in assessment of the applicants’ torture claims. As counsel for this case had not referred me to the Court of Appeal case, I shall proceed on the basis that the result of the Court of Appeal case has no bearing on this case.

The applicants

7.The applicants are nationals of Bangladesh. They last arrived in Hong Kong on 15 January 2013 and were permitted to remain as visitors for 2 days for transit purpose until 17 January 2013. However, they did not depart and overstayed. On 22 January 2013, they surrendered to the Immigration Department. By way of a written representation dated 6 March 2014, the applicant lodged non-refoulement claim. Their claims are based upon their fear that upon refouled, they will be harmed or killed by the 1^st applicant’s husband’s political rivalries, the Sorbohara people (“SP”). Besides, the applicants are afraid that they will be forced to convert to Sunni Muslim by the 1^st applicant’s maiden family and their religious freedom will be adversely affected.[1]

8.For the factual background, I shall adopt the summary of counsel for the applicants. The details can be found in paragraph 26 to paragraph 61 of the Board’s Decision.

(1)  The 1^st applicant is a national of Bangladesh. She married her husband, Mr. Sarkar in 1997 and gave birth to her sons on 28 May 2006. The 1^st applicant is at risk of persecution for reasons of political opinion by way of association with her husband who, at the material time, was the President of the Bangladesh Workers’ Party (“BWP”) at the Gaibanda district level in Bangladesh and further, on account of her conversion to the Almadi faith.

(2)  The 1^st applicant experienced three main incidents prior to departing Bangladesh. In 1998 (“First Incident”), the 1^st applicant and her husband were at home when some members of the East Bengal Sorbohara Party (“SB Party”) came to their home and started loudly shouting her husband’s name. Her husband hid in the ceiling space in their house. The 1^st applicant opened the door and told the people from the SB Party that her husband was not at home. They forced their way into the house, searched for the 1^st applicant’s husband and when they could not find him became angry and subsequently left the home.

(3)  In July 2006, the 1^st applicant and her husband were at home watching television when someone knocked on the door. The 1^st applicant opened the door and was pushed aside by intruders, who entered the home. Her husband was assaulted by the intruders, tied up, blindfolded and abducted (“2^nd incident”). The husband was subsequently able to escape, made his way to his brother’s house and then onward to Hong Kong. The 1^st applicant did not see her husband again until 2013, when she came to Hong Kong.

(4)  In December 2007, the applicants were on their way to home village when the 1^st applicant was abducted by two masked men who used something to cover her nose which rendered her unconscious. She regained consciousness the next day, when she found herself in hospital. Whilst she had no recollection of the period when she was unconscious when she regained consciousness, she learned, on overhearing a conversation between a doctor and her brothers that she had been raped. She could also feel the physical side-effects of what had happened to her (“3^rd incident”).

(5)  These three incidents relate to risk arising from her husband’s grounds for non-refoulement, inter alia, his political opinion.

(6)  In addition, the 1^st applicant also claims that she is at risk of persecution on ground of religion by reason of her conversion to the Ahmadi faith. Due to her conversion, her family subjected her to pressure to return to Sunni Islam, which involved detaining her at home and taking possession of properties belonging to her husband.

(7)  The 2^nd and 3^rd applicants (who are twins) were born in Bangladesh on 28 May 2006. They came to Hong Kong with their mother the 1^st applicant, when they were 7 years old. They are now 15 years old. The facts underlining the non-refoulement claim of the children are based on those in their mother’s claim, which in turn, is partially predicated on the primary facts advanced by their father, Mr. Sarkar.

The Director’s Decisions

9.The Director considered their claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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 dated 21 August 2015 (the “Director’s First Decision”), the Director dismissed their joint application on the claim of Torture risk, the BOR 3 risk and the Persecution risk for reasons that the level of risk of harm from the SB Party people (“SP”) and the 1^st applicant’s maiden family upon their return was assessed to be low as in the 3 incidents of attacks by the SP, she was not hurt on the first 2 incidents and there was no evidence to show that the attackers were the SP nor was there any evidence to show that her maiden family would harm or kill them in order to make them convert to Sunni Muslim [13] - [15]; that state protection was available to the applicants [16] - [20] and that internal relocation was a viable option to them [21] – [24].

11.By way of Notice of Further Decision dated 26 September 2017 (the “Director’s Second Decision”), the Director rejected the applicants’ claim on BOR 2 risk for the reason that there was no evidence to show that their right to life would be violated upon their return to Bangladesh. The applicants had also raised the issues of BOR 20 [Right of children], BOR 22 [Equality before and equal protection of law] and BOR 23 [Rights of minorities] in support of their applications. The Director had considered these issues and rejected them for the reason that none of them is identified as absolute and non-derogable rights in respect of which the exception in section 11 of Hong Kong Bill of Rights Ordinance does not apply as held by the Court of Final Appeal in Ubamaka Edward Wilson v the Secretary for Security (2012) 15 HKCFAR 743.

12.The Director’s First Decision and the Director’s Second Decision are collectively called “the Director’s Decisions”.

The Board’s Decision

13.The applicants appealed the Director’s First Decision to the Board and the Board conducted an oral hearing on 10 October 2017. The respectively parties were legally represented.

14.Since the children’s case depends on the 1^st applicant’s facts, in the discussion below, I shall refer to the applicant, who represented herself and the children unless otherwise stated.

15.The Board had considered the applicants’ claim on the applicable grounds, including the added grounds relating to the children on BOR 20, BOR 22 and BOR 23 [9].

16.At paragraph 25 of the Board’s Decision, the adjudicator said:

“In arriving at my decision, I have considered all the information submitted by the Applicant together with her evidence at the hearing. I have considered the documents submitted by the Applicant and the Country of Origin Information (“COI”) reports contained in the Hearing bundle (“HB”).”

17.Having set out the factual background of the applicants’ case[2], the Board embarked on its discussion of the issues. First, it set out the core of the applicant’s case. It noted that on the 1^st applicant’s own evidence, she knew nothing of her husband’s political involvement because she was busy with her studies and her husband was mostly absent from their home [63].

18.The Board found that, according to the 1^st applicant, it was the SP who attacked her husband during the First Incident and the Second Incident was based upon speculation. The abduction incident in the Second Incident was hearsay evidence from her husband, which was not supported by any other credible evidence [64] & [65].

19.As to the Third Incident, in which the applicant was allegedly raped, the Board considered that it is her speculation as in the NCF [Non-refoulement Claim Form], the 1^st applicant stated “I could not identify the men. But I guessed that they were my husband’s political rivalries (sic)” [HB 173 paragraph 27 [66]. The Board did not give weight to the medical evidence as it did not tally with her evidence that she had been raped. Her explanation that her brothers and family asked the doctor who signed the medical certificate not to make any reference to ‘rape’ in the certificate is based upon hearsay evidence and speculation, and for that reason, the Board found that the medical certificate lacks credibility.

20.In relation to the applicant’s credibility, the Board had made the following findings:

“70. The general credibility of the Applicant is doubtful. Her evidence in relation to all 3 incidents is very vague and generalized. Her assertion that SB people were responsible for the attacks is based solely on her own speculation which is, in itself, based entirely on hearsay evidence of what she had been told by her husband. She does not claim that she was targeted by the attackers who, she says [says] were her husband’s political enemies.

71. The Applicant’s evidence relating to her claimed abduction during the Third Incident is extremely vague and lacking in detail. Her assertion that she was raped during the abduction is highly speculative. Her evidence in this regard is implausible and is not credible.

72. The documents which the Applicant has submitted in support of her claimed abduction do not advance her case. As I have indicated, the medical documents are, on the Applicant’s own evidence, unreliable on their face. I am unable to attach weight to them.

73. The purported copy of police report which the Applicant says was made in relation to her abduction is dated 22 December 2007, the day she claims to have been discharged from hospital. It makes no mention of the Applicant having been abducted, or raped, and it does not advance the Applicant’s case. The newspaper article also does not mention that the Applicant was abducted, or raped, and the Applicant’s explanation of how the article came to be published is inherently implausible and lacks credibility. These documents do not advance the Applicant’s case.

74. On the totality of the evidence, I am not persuaded, on the balance of probability, that the Applicant was abducted as she claims, or that she was raped as she has asserted.”

21.Having considered the evidence, the Board dismissed the applicants’ appeal on the following reasons:

(1)  The Board rejected the applicant’s evidence saying:

“74. On the totality of the evidence, I am not persuaded, on the balance of probability, that the Applicant was abducted as she claims, or that she was raped as she has asserted.”

(2)  The Board “attached no weight to the Applicant’s evidence which amounts to hearsay and speculation, which is unsupported by any other credible evidence” [76].

(3)  “77. On the totality of the evidence I am not persuaded that the Applicant was targeted by the SP because of her husband’s political activities. In particular, I am not persuaded that the Applicant was abducted, or raped in December 2012 as she claims.”

(4)  On the issue of religious conversion, the Board accepted that the applicant had converted from Sunni Islam to the Ahmadi faith. However, it found at paragraph 82:

“… … On the totality of the evidence, I am satisfied that the Applicant’s family did no more than to try, by verbal persuasion, to convince the Applicant that she should re-convert to Sunni Islam. If her family members had truly wished to harm the Applicant because of her religious conversion, they had plenty of opportunity to do so yet the Applicant was not subjected to any physical harm.”

(5)  The Board was not persuaded that the applicant would be liable to suffer ill-treatment of any sort at the hands of her husband’s former political enemies [83].

(6)  The Board was not persuaded that the SP would have any adverse interest in the applicant’s husband after such a long time [84].

(7)  The Board was not persuaded that there is a real risk that the applicant would, because of her conversion to the Ahmadi faith, personally be subjected by members of her family, or by members of the Sunni community in general, to ill-treatment of the level of severity required to support her application for non-refoulement protection [85] – [87].

(8)  Having considered the added grounds on BOR 20, BOR 22 and BOR 23, the Board found that none of them has been declared to be “non-derogable and absolute” by the courts of Hong Kong and it found that these articles do not apply to non-refoulement claims. However, the Board further considered the applicant’s evidence relating to the issues under the above articles to see if there is a real risk that the applicants would be subjected to ill-treatment of the type, and to the degree of seriousness contemplated under the grounds of the Unified Screening Mechanism. It found that the applicant’s evidence does not advance their applications for non-refoulement protection [93] & [94].

22.The Board then considered each of the grounds of Persecution risk, BOR 3 risk and BOR 2 risk and Torture risk and dismissed each of them as there was no evidence to established the respective claims.

23.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

The applicants’ grounds in support of their application

24.The applicants have raised the following grounds in support of their application.

(1)  No separate consideration of children’s claims and failure to consider child-specific risk.

(2)  Failure to take into account relevant matters and to give reasons was procedurally unfair and a misdirection in law.

(3)  The Adjudicator’s decision to attach no weight to any of the Applicant’s evidence which amounts to hearsay and/or speculation and which is unsupported by any other credible evidence is an error of law and/or irrational.

(4)  The finding that the 1^st Applicant’s evidence in relation to her rape was purely hearsay/speculative was irrational and/or unreasonable.

(5)  The rejection of the medical documents submitted by the Applicant was irrational and the requirement to corroborate with documentary evidence was an error in law.

(6)  The rejection of the newspaper article which reported the Applicant’s abduction was irrational and/or unreasonable.

DISCUSSION

25.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 applicants’ 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).

26.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny - Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45.

27.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.”

Ground 1 - No separate consideration of children’s claims and failure to consider child-specific risk.

28.The applicants refer to §26 of the Board’s Decision and say that the Board failed to consider the children’s claim at all and treated all the claims as a composite claim. They further submit that since the Board discredited the 1^st applicant’s evidence, it is incumbent upon it to separately consider and assess the evidence of the children and to consider their claim on all applicable grounds with regard to the personal circumstances of each applicant. Paragraph 26 of the Board’s Decision refers to the facts of the case. Since this is a joint application and the children’s case depends on the 1^st applicant’s case, the Board had to consider the applicants’ case as a composite case as far as the facts are concerned. The Board has to make separate assessment as to their claims, with particular attention to the child-specifics issues.

29.It must be borne in mind that this is the applicants’ joint application and the children’s factual evidence depends on the evidence of the 1^st applicant. The Court of Appeal in Fabio’s case held that because the minor was unrepresented before the Board, the Board should be aware that the minor’s specific interest might not have been brought to its attention because of the absence of legal representation and the Board should deal with the minor’s claim as independent claim. This issue is made clear by the Court of Appeal in Mujiati Lestari & Hossain Arrifky Rahmatullah (a minor, by his next friend and mother, Mujiati Lestari) v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office and Director of Immigration [2022] HKCA 1471, Hon Au and G Lam JJA, 10 October 2022:

“18. … …, first, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children. ……

19. Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[3](emphasis added)”

30.Shorn of the factual basis of the 1^st applicant, the children simply have no facts in support of their non-refoulement claims. In this case, the Board found that it did not accept the 1^st applicant’s facts on the 3 incidents, especially on the 3^rd incident where she alleged that she was abducted and raped by the SP.

31.Counsel for the applicants submitted that although the applicants were legally represented, there are significant doubts that the full strength of their claims had been presented. In the supplemental skeleton submission, counsel further submitted that despite the applicants were legally represented, the Board ‘also have a duty to make independent inquiries where appropriate; the child-specific risks are non-exhaustive because the Board may, in conducting the appropriate inquiry, discover further child-specific risks.’ At the hearing, counsel agreed that the suggestion amounts to imposing an inquisitorial role upon the Board. I have 2 comments on this suggestion. Firstly, this proposition begs the question whether there is any finality in the enquiry by the Board on child-specific issues. Secondly, this inquisitorial approach has been considered undesirable by the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

26. In the court below, the screening process has been described as “inquisitorial” in nature (paragraph 30 of the judgment). This is not a description used in Prabakar….

27. In my view, the description is at best a shorthand for the high standards of fairness required of the screening process. It is prone to create unnecessary confusion and arguments. Its use in the present context should be avoided.

52… the applicant is and was throughout legally represented. If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. …’

32.Where the 1^st applicant has been found to have no factual basis in support of her claim, there is doubt whether her children, whose cases rely upon the 1^st applicant’s facts, can establish non-refoulement claim protection.

33.The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 1121, Hon. G Lam and Chow JJA, 3 August 2022, following the practice in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, held:

“22. In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, found the 1^st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1^st Applicant’s claim. There was, accordingly, no factual basis which could support [of] the 2^nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24. In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.”

34.This case is similar to the above case’s situation, except the applicants in this case were legally represented before the Board. The Board had considered the additional grounds on BOR 20, 22 and 23 and for the reasons given, it came to its view that they did not advance the children’s cases. Counsel submitted that the applicants had referred to the discrimination of the children’s rights under BOR 20, 22 and 23, it is incumbent upon the Board to make enquiries as to whether the children will be subjected to the discriminations under the relevant articles. However, citing the articles does not constitute a sufficient ground for determining that they will be in danger of being subjected to the risks upon their return to their country. Additional grounds have to exist to show that they will be personally at risk, the burden being on them. The Court of Appeal in TK’s case held:

“19. Secondly, who has the burden of proof? The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

22. … … High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.

23. … … whereas under the enhanced screening mechanism, a torture claimant is represented and assisted by the Duty Lawyers Scheme. Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.

25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

28. …what is the standard of proof? … the latest Guidelines (February 2011 version) issued by the Director for handling claims under the enhanced screening process, para 36, under “Standard of Proof”, one finds this undisputed statement:

“… In Article 3 of the Convention, ‘substantial grounds’ is required to establish a claim, which is more than a mere possibility of torture but do not need to be highly likely to occur to satisfy that provision’s conditions. The risk of torture must go beyond mere theory or suspicion. The risk does not have to meet the test of being ‘highly probable’, but it must be ‘personal and present’. For the purposes of Article 3 of the Convention, a foreseeable, real and personal risk of being tortured must exist in the country to which a person is returned.”

29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be “personally at risk”. This is because the aim of the determination under the CAT is to establish “whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return”. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her circumstances. AS v Sweden, CAT/C/25/D/149/1999, UN Committee Against Torture (CAT), 15 February 2001, para 8.3.”

35.There is simply no evidence on the additional grounds to show that the children will be personally at risk if they return to Bangladesh.

36.In fact, the Board had taken on board the child-specific issues as raised by the 1^st applicant’s letter dated 6 June 2017[4], which raised the following issues for the Director’s consideration and which had also been considered by the Board:

(1)  their right to religion would be jeopardized;

(2)  they would be subjected to social discrimination socially because of their religion belief in Ahmed Muslim;

(3)  they would be subjected to discrimination in schools in Bangladesh because of their religious beliefs;

(4)  they would not have protection under Article 20; and

(5)  they would not have protection under Article 22.

37.The Board had taken into consideration that section 11 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) does not confer the right on the children to remain in Hong Kong as this is within the discretion of the Director [89]. It then considered the Ubamaka case where the Court of Final Appeal decided that the exception contained in Section 11 HKBOR does not apply to rights which are ‘non-derogable and absolute’ [90]. In this case, it was further decided that the right of freedom of thought, conscience and religion, protected by BOR Art. 15 are not absolute [91]. They are the answers to points (1), (2) and (3) of the letter, supra.

38.The Board then considered Article 20, 22 and 23 of the HKBOR in its discussion and rejected them for the reason that the 1^st applicant’s evidence provides no basis capable of establishing, to the low standard required, that there is a real risk that the applicants would be subjected to ill-treatment of the type, and to the degree of seriousness, contemplated under the grounds of the USM [93] and [94]. Such findings of the facts and the application of the law are within the discretion of the Board. There is no submission that the Board had made any error of the law in respect of Article 20, 22 and 23 of the HKBOR.

39.This ground fails.

Ground 2 - Failure to take into account relevant matters and to give reasons was procedurally unfair and a misdirection in law.

40.Counsel submitted that the letters submitted by the 1^st applicant had raised further claims in respect of the children under Article 20, 22 and 23 of the HKBOR, but ‘the Adjudicator failed to consider these matters at all or to make any assessment of risk whatsoever as it reacted specifically to the Children.’

41.This ground has been discussed in Ground 1 above.

42.If the applicants raised further claims in respect of the children under BOR 20, 22 and 23, they have to adduce evidence in support of their claims. This was held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security and Director of Immigration (2012) 15 HKCFAR 743, per Ribeiro PJ, 21 December 2012:

“46. (c) The person claiming protection will have to identify the BOR rights invoked and adduce evidence supporting his claim that such rights would be infringed if the Government were to proceed with its enforcement of the relevant duties or exercise of the relevant powers. …”

43.The applicants have asserted their rights for protection without adducing any evidence supporting their claims.

44.The Board is correct to say ‘Neither BOR 20, BOR 22 nor BOR 23 has been declared to be “non-derogable and absolute” by the courts in Hong Kong.’ This is not disputed by the applicants. However, the Board further dealt with the substance of those articles in paragraphs 93 and 94 of the Board’s Decision as discussed above.

45.Therefore, this ground fails.

Ground 3 - The Adjudicator’s decision to attach no weight to any of the Applicant’s evidence which amounts to hearsay and/or speculation and which is unsupported by any other credible evidence is an error of law and/or irrational.

46.The applicants submitted that the Board was in error of law to require corroboration in asylum claims as the Board did not accept any hearsay evidence unsupported by other evidence. Counsel submitted that the Board had failed to assessed the credibility of the applicant’s evidence by taking into account that she could not be expected to produce witness or full documentary evidence for the events and it should give the benefit of the doubt to the applicant.

47.In paragraphs 70 to 76, the Board dealt with the applicant’s evidence. The Board’s finding of her evidence in relation to all 3 incidents is that they are very general and generalized. For the first 2 incidents, her husband told her that those people were SP. She has no knowledge of those people herself. As to the third incident, the evidence is extremely vague and lacking in detail. It did not accept her evidence that she was abducted or raped as she asserted. It further said that her evidence amounted to hearsay and speculation, which was unsupported by any other credible evidence.

48.Counsel submitted that because of the Board’s comment that the evidence was hearsay and speculation, which was unsupported by any other credible evidence, the Board was requiring corroborative evidence to support her evidence. However, in the Board’s Decision, the Board did not say that the applicant has to produce corroborative evidence to support her evidence. When the Board considered that the applicant’s evidence was general or vague; hearsay or speculative or in doubt, the Board has to take into consideration other credible evidence to verify her evidence in order to strike a balanced view. If there are credible evidence in support of the applicant’s evidence, the Board has to take it into its consideration. If it does not accept the evidence despite other creditable evidence in support of it, it has to give reasons for disbelieving her evidence. It is in this context that the Board said that there was no other credible evidence in support of the applicant’s evidence, which is vague and speculative. The Board did not reject the 1^st applicant’s evidence wholesale. As can be seen from the Board’s Decision, the Board accepts that the 1^st applicant converted to the Ahmadi faith and took an oath on 27 November 2011 to become a member of the Ahmadi mosque in Mirpur [78].

49.The Board did not accept the 1^st applicant’s evidence in relation to the 3 incidents under the circumstances that the first 2 incidents were related to her by her husband, who did not see the SP people on the first occasion. As to the third incident, she did not see the people who allegedly abducted her and raped her. She was never a member of her husband’s political party and she had no knowledge of her husband’s activities. She was unconscious when she was allegedly raped. She only heard the conversation between the doctor and her brothers that she had been raped, though she also said that she had such physical feeling herself. The medical report did not state that she had been raped. The matter was reported to police, but the police report did not mention that she had been abducted or raped. The news report also did not say that she was abducted or raped.

50.Under those circumstances, the Board considered that it could not accept her evidence that she had been abducted and raped. As there was no objective evidence in support of the 1^st applicant’s evidence, that the Board did not accept her evidence cannot be said as Wednesbury unreasonable. Even though she might have been abducted or raped, there is simply no evidence to support her allegation that the acts were done by the SP. If the SP intended to harm her, they could have done so on the first incident as they did not know that her husband was inside the house. It is within this context the Board concluded that the medical report, the police report or the news report would not advance her case.

51.This ground fails.

Ground 4 - The finding that the 1^st Applicant’s evidence in relation to her rape was purely hearsay/speculative was irrational and/or unreasonable.

52.The applicant complained that it was irrational for the Board not to take into consideration the applicant’s explanation that she could feel what had happened to her, referring to rape in the 3^rd incident. It seems that the Board had taken this piece of evidence into consideration. It did not accept that the doctor was persuaded to doctor the medical report by omitting the fact that she was raped for the reasons that she had given to the Board. The adjudicator had, at the hearing before him, seen the applicants and heard the evidence, which was subjected to cross examination and legal submissions. It is within the Board’s discretion to assess the credibility of the evidence. The Board had given its reasons to support its conclusion in relation to the evidence. As analyzed above, there is no evidence to show that the 3^rd incident was committed by the SP. It is up to the Board to make the decision on the facts of the case. This Court should not interfere as guided by the Court of Appeal in Kartini’s case, §13(1).

53.This ground fails.

Ground 5 - The rejection of the medical documents submitted by the Applicant was irrational and the requirement to corroborate with documentary evidence was an error in law.

54.Counsel submitted that the Board had not considered whether the explanation given by the 1^st applicant that she did not disclose that she had been raped because of the societal values and stigma of rape in Bangladesh runs counter to the established legal principle in ST v Betty Kwan [2014] 4 HKLRD 277, which warned against the imposition of the adjudicator’s social value on the 1^st applicant.

55.The explanation given by the 1^st applicant may be applicable to the newspaper report as it is a public document. It is difficult to understand why the medical report, which is not a public document should conceal such fact. The same reason may apply to the police report, which may not be a public document. The Board has not given this reason specifically to explain its non-acceptance of the 1^st applicant’s evidence. However, I consider that it is within one’s common sense to find explanation for the concealment of the rape incident. In any event, even if the 1^st applicant had been raped, there is no evidence that it was committed by the SP as she said she did not see those people who had abducted her and she was unconscious when she was allegedly raped. She is never a member of her husband’s political party herself. If the SP were to take revenge on her for her husband’s refusal to join their party, they could have harmed her in the first incident, in which they did not hurt her. The issue of corroborative evidence to support the applicant’s evidence has been discussed in paragraph 48, supra.

56.This ground fails.

Ground 6 - The rejection of the newspaper article which reported the Applicant’s abduction was irrational and/or unreasonable.

57.Counsel submitted that the adjudicator’s rejection of the newspaper article reporting the applicant’s abduction was erroneous and irrational, referring to §73 of the Board’s Decision. Counsel further submitted that the police report and the newspaper report together with the medical report support the fact that the 1^st applicant was missing from 18-20 December 2007. It is therefore capable of supporting the 1^st applicant’s account of the abduction (and her sexual assault).

58.Paragraphs 73 and 74 of the Board’s Decision have been fully set out in paragraph 20, supra. The Board had given the reasons to support its finding that those documents do not advance the applicant’s case. Counsel submitted that it was erroneous and/or irrational for the Board’s approach and assessment of the 1^st applicant’s credibility and supporting evidence. Given the fact that the 1^st applicant relies upon the fact that if she is to return to her own country, she will be subjected to the risks of being tortured, abducted or raped by the SP because of the political stance of her husband. It is agreed that the fact that she was abducted and raped was omitted from the medical report, the police report and the newspaper report. The 1^st applicant explained that she did not want the fact that she was raped to be publicized, therefore her brothers persuaded the doctor to omit abduction and rape from the medical report and she did not inform the police and the news reporters that she was abducted and raped. It is understandable that the issue of being raped is a shameful imputation to herself and her family. But the issue of abduction is different from the issue of being raped. There is no explanation from the 1^st applicant why she refused to mention abduction to police and the news reporters. Besides, there is the important evidence that she was unable identify those people who had allegedly abducted and raped her. In my view, it is under those circumstances that the Board concluded that those documents do not advance her case.

59.This ground fails too.

CONCLUSION

60.Accordingly, I find that the applicants’ intended application for judicial review has no merits and no reasonable prospect of success.

61.Accordingly, I dismiss the applicants’ joint application.

DISPOSITION

62.I shall make an order in terms as follows:

(1)  leave for the applicants to apply for judicial review of the Board’s Decision be refused and the application be dismissed;

(2)  costs of this application be in the cause of the proceedings and the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 25^th day of November 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