Case Document

100%Judiciary

HCAL 965/2019

[2023] HKCFI 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 965 of 2019

BETWEEN
	Nila Mst Khaleda Kaisari	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 present 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 1 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. She appeared before the Court on 23 November 2022.

The applicant

3.The applicant is a national of Bangladesh. She entered Hong Kong on 15 December 2014 as a foreign domestic helper and her employment contract ended on 15 December 2016. Failing to procure a new employment contract, she was required to leave on 18 January 2017. She did not depart and was arrested by the police for overstaying on 23 August 2018. From 29 August 2018 to 24 October 2018, she lodged her non-refoulement claim by way of eleven written significations. Her claim was made on the basis that, if refouled, she would be harmed or killed by Bacchu, a leader of the Awami League, due to her default in repaying her loan.

4.In brevity, the applicant borrowed a loan from Bacchu upon the advice of her husband to pay for the arrangements of her overseas employment. While she was in Hong Kong, she remitted money regularly to her husband. However, it turned out that he never repaid Bacchu. In December 2016, her mother phoned and informed her of her husband’s death. Her mother learnt the incident from their neighbors who said that her husband was killed by Bacchu. Thereafter, Bacchu attacked the applicant’s mother and children. Being unable to settle the loan, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 19 December 2018 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 her claimed fear of harm was groundless. In elaboration, the Director found that (i) it was questionable that Bacchu had an intention to harm or even kill her [12]; (ii) even so, the dispute with Bacchu was a private one without state involvement [13]; (iii) state protection would be available to him [14]-[16]; and (iv) internal relocation was a viable option [17].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 12 March 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [5].

8.The Board considered the applicant’s claim and her personal background [26]-[47]. It also clarified with the applicant the material aspects of her claim [49]-[65]. Having considered the evidence, the Board expressed concerns over the inconsistencies in the applicant’s evidence [71]. In particular, the Board noted that she was inconsistent as to whether there was a written contract for the loan [71]; that her delay in lodging the non-refoulement claim signified no immediate risk of harm if returned [72]; and that she provided confusing evidence as to who notified her of the attack at her mother’s house [74].

9.As a result, on the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation and her statement attached to Form 86 in support of her application, the applicant stated:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)  the adjudicator acted in a procedurally unfair manner: the hearing bundle was given to her near the hearing, giving her not sufficient time to prepare her case and she was confused at the Board’s hearing; that the documents are in English and she did not have interpretation service; that she was not invited to make written submissions

(3)  the Board’s Decision is unreasonable or irrational in public law sense; the Board relied on the source of news not officially recognized or is simply hearsay and cases which are outdated, making it speculate that if is safe for her to return to her country;

(4)  the Board failed to meet the greater care and duty owed to a self-represented clamant.

DISCUSSION

12.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).

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

14.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.”

15.As to the grounds under paragraph 11 above, grounds (1), (3) and (4) are her bare assertions or opinions without any evidence in support. The applicant did not apply to the Board for an adjournment for her to prepare her appeal. In fact, she said that she had answered all the questions put to her by the Board, which means she understood the proceedings. Ground (2) fails too as the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

16.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.

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

CONCLUSION

18.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 26^th day of January 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26/1/2023 Nila Mst Khaleda Kaisari Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26/1/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15118/18/12/475/B1853 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4923/18 (Formerly RBCZ 10900/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)