Ara Mst Ismot v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 980/2022

[2022] HKCFI 3617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 980 of 2022

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 24 August 2022 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.

The applicant

3.The applicant is a national of Bangladesh.  She last entered Hong Kong as a foreign domestic helper on 21 November 2018 and was permitted to remain until 9 October 2020 or two weeks after the termination of contract, whichever was earlier.  On 13 January 2019, her employment contract was prematurely terminated.  She did not depart and had overstayed since 28 January 2019.  On 18 May 2019, she was arrested by the police for overstaying.  On 20 May 2019, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband because of her affair in Hong Kong.

4.According to the applicant, ever since her marriage with her husband in 1993, he had been abusive towards her.  He often assaulted her and demanded her family to provide more dowry.  The applicant never reported these assaults to the police as her village council chairman persuaded her not to for the sake of their three children.  However, on 7 July 2014, her husband went to her father’s house, demanding the transferal of their family farmland as dowry. Her father refused and her husband killed her father and elder brother.  The applicant had been staying in her younger brother’s house until August 2016 when she first left for Hong Kong to work.  In 2018, she returned home without encountering her husband.  Thereafter, the applicant returned to Hong Kong for work. In early 2019, she developed a romantic relationship with her boyfriend.  One day in April 2019, she received a phone call from her mother informing her that her husband already knew about the affair and would kill her upon her return. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 16 August 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) on her own evidence, she could avoid the harms from her husband [13]; (ii) the claimed risk of harm from her husband was based on bare assertions [14]; (iii) state protection would be available to her [16]-[22]; and (iv) internal relocation was a viable option [23]-[29].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 12 August 2022, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [8].

8.Having assessed the evidence, the Board concluded that the applicant’s claim was not credible [10].  The Board considered that a material aspect in the applicant’s claim was her relationship with her boyfriend in Hong Kong. However, it found that her evidence on the relationship was vague [49]-[50] and inconsistent in relation to the timelines [51].  While the Board maintained the concerns over the existence of the relationship, it gave the applicant the benefit of the doubt and proceeded on the basis that she had an affair [52].

9.However, the Board identified inconsistencies in her evidence with regards to her husband.  For example, the applicant was contradictory as to when she last contacted her husband [57]-[59].  She also had changing accounts with the timing of her father and brother’s death, and also with the cause of their death [60]-[63].  In addition, she provided different descriptions as to how her husband ill-treated her in the past [64]-[65].

10.In these circumstances, the Board rejected the applicant’s claim on the basis of lack of credibility and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 21 September 2022 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said that she wanted to judicial review of the Board’s Decision. But she did not set out any specific grounds.

DISCUSSION

13.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).

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

15.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.”

16.The ground in paragraph 12 above is not valid to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 1^st day of December 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