Khatun Suma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 371/2022 on BabelCite. This High Court CFI judgment was delivered on 6 February 2023.
1. This is the Applicant’s application by Form 86 filed on 23 May 2022 seeking leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 March 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 August 2021 (the “Notice”).
Cites 2 cases
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HCAL 371/2022 [2023] HKCFI 248 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 371 of 2022
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge To: Leave to apply for Judicial Review refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 23 May 2022 seeking leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 March 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 August 2021 (the “Notice”). 2.The Applicant is a Bangladeshi national, now aged 36. She had previously worked as a foreign domestic helper in Dubai from November 2013 to February 2016. She started to work in Hong Kong in March 2017. Her employment was prematurely terminated on 23 February 2018. She did not leave and overstayed since 24 February 2018. She was arrested by the police on 27 August 2020. She lodged her non-refoulement claim by way of written submission dated 1 September 2020. 3.Subsequently, her non-refoulement claim was 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 his Notice, the Director rejected her claims under all four applicable grounds. She appealed against the Notice, but her appeal was dismissed by the Board’s Decision. Now she applies for leave to apply for judicial review of that Decision. The Applicant’s case 4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of the screening of interview in the presence of her lawyer. In gist, she claims that she will be harmed or kill by the people belonging to the Awami League (“AL”) as she is a supporter of the Bangladesh Nationalist Party (“BNP”). 5.The Applicant was born in Hulhula, Shonabaria, Kalaroa, Satkhira, Bangladesh. She is single. She had received primary level education and has working experience as a domestic helper in Dubai from November 2013 to February 2016. 6.She became a supporter of the BNP in 2010. She attended meetings, rallies and assisted in election campaigns. She and her father were active members of the BNP but not the rest of her family. 7.Towards the end of February 2016, about ten people from the AL armed with wooden sticks came to her home. They verbally abused her father and demanded him to leave the BNP otherwise they would kill him. They beat him with wooden sticks until he pretended to agree to quit. The Applicant’s father suffered injuries all over his body. They also demanded the Applicant to quit the BNP or else she would be killed. Then, the men left. The Applicant’s father sought medical attention. He recovered fully fifteen days later. His family moved out of the village afterwards. 8.The Applicant did not report the incident to the police. She came to Hong Kong to take up employment on 6 March 2017. She did not consider she could avoid the risk of harm by internal relocation because the AL is the ruling party. She believes that the AL people are very influential, well connected and could locate her anywhere in Bangladesh. The finding of the Board 9.At the appeal hearing before the Board, the Applicant departed from her evidence in the NCF and screening interview in two significant respects. First, in the NCF, she said only she and her father were politically involved and not the rest of her family. At the appeal, she said all members of the family were politically involved. She explained the discrepancy as a difference in the degree of their involvement. The Board did not accept her explanation due to the clear language in the NCF. As she demonstrated little knowledge about the BNP, the Board did not accept her evidence that she was a member of the BNP and about her involvement with the BNP. 10.Second, during the screening interview, she departed from her evidence in the NCF that she was not assaulted. She said she was hit with wooden sticks, kicked in her abdomen, and her lower lip bled. At the appeal hearing, she further departed from her evidence in the screening interview and alleged that she was sexually molested and raped. Despite the inconsistencies, the Board accepted her allegation about rape on the basis that she may have been reluctant to mention it earlier because of shame. But as the Board did not accept her evidence about her involvement with the BNP, it did not accept that she was targeted because of her political views or activities. It found the rape was opportunistic and the possibility of this recurring is remote and she would be able to reside with her family and avoid further risk of harm in her home village. 11.On the basis of authoritative and credible Country of Origin Information (“COI”), the Board accepted that BNP supporters are unlikely to be at risk of harm from the AL members based in their village, if they leave and reside elsewhere. Thus, it did not accept the Applicant’s evidence that she could not avoid the risk of harm by relocating to other cities in Bangladesh. It also did not accept that she had not been in contact with anyone in Bangladesh such that she could find no one to assist her if she returns to Bangladesh. 12.Mainly because of its finding in paragraph 10, the Board was not satisfied that the Applicant has a well-founded fear of persecution for any reason protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion as to entitle her to protection under the Persecution Risk ground. 13.Even though the AL was the ruling party, the Board was not satisfied that the ill-treatment inflicted on the Applicant was done by or at the instigation of a government official or that any public official can be said to have consented or acquiesced in the commission of that assault. Hence, the Board found that the ill-treatment did not fall within the meaning of “torture” under section 37U(1) of the Immigration Ordinance as to entitle her to protection under the Torture Risk ground. It also found that the Applicant could avoid that risk by internal relocation and it would not be unduly harsh for her to relocate to other areas of Bangladesh. 14.Mainly because of its finding in paragraph 10 above, the Board was not satisfied that there is a substantial or real possibility that the Applicant would be subjected to a similar incident or other harm that would amount to torture, or cruel, inhuman, degrading treatment or punishment as to entitle her to protection under the BOR 3 Risk ground or BOR 2 Risk ground. 15.Mainly for the above reasons, the Board dismissed her appeal against the Notice of the Director. Legal principles applicable to judicial review 16.The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Grounds for judicial review 17.The Applicant advanced the following six grounds of application:
These grounds are mainly directed at the alleged failures of the Director. As the Director’s decision was superseded by the Board’s Decision and the Board actually heard the appeal by way of rehearing, the alleged failings of the Director are irrelevant. For the benefit of the Applicant, the Court shall treat her complaints as directed at the Board as well. Ground (1): unfairness and unreasonableness 18.The Applicant made a general allegation that the Decision was unfair and unreasonable as required by the Wednesbury test. At the hearing, she was asked to particularise the unfairness and unreasonableness. She was unable to give any response. Having considered all the grounds of application and examined the Board’s Decision, the evidence and the papers, for reasons as explained in paragraphs 23 to 25 below, this Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings and is satisfied that the Decision meets the requirements of the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Ground (2): failure to give proper weight to the presence of state acquiescence 19.The Applicant complained about the Board’s failure to give proper weight to the presence of state acquiescence and alleged that she “was tortured at the behest of state law enforcement agencies and those in the high ups of political circles”. At the hearing, she was asked to identify any evidence or incidents which suggested influence by the state. She could not provide any. Her evidence, put at the highest, is that she and her father were tortured by members or supporters of the AL which was the ruling political party and very influential. That is far short of evidence suggesting state acquiescence. The issue of state acquiescence had been considered and dismissed by the Board: see paragraphs 53 and 55 of the Decision. There is no substance in this ground. Ground (3): failure to give proper weight to COI supporting the Applicant’s case 20.The Applicant complained that the Board acted unreasonably and unfairly by placing too much reliance on COI but failed to take her personal background and experience into account. It also failed to give enough weight to COI supportive of the Applicant’s case. At the hearing, she was asked to identify the COI which she thought would support her case. She was unable to do so. 21.The COI considered by the Director and the Board are from credible and authoritative sources. The weight to be attached to a piece of COI is a finding of fact in the context of the particular case. It is a matter solely within the province of the Board. The COI relied on by the Board is mainly related to information about the BNP, which cast doubts on the Applicant’s evidence about her involvement in the BNP. The Applicant’s background and personal circumstances had no bearing on the Board’s finding in that respect. In fact, the Board had clearly taken her personal circumstances and experience into account. This utterly fair attitude is amply demonstrated by the Board’s acceptance of the Applicant’s evidence that she had been raped despite that was the third version of her account of the incident given under legal advice in the presence of her lawyer, made five years after the alleged incident under calm and safe circumstances to an independent immigration officer in Hong Kong far away from the risk state who was charged with the duty of assessing her claim for protection. The Board had clearly taken into account the delicate issue of shame which is a particular feature of the Muslim culture. It can hardly be argued that the Board was insensitive to the Applicant’s personal background circumstances and failed to give proper weight to the COI favourable to her. Ground (4): procedural impropriety and unfairness 22.The Applicant complained that the Board acted improperly and unfairly when assessing whether to accept or reject the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to respond. The Applicant gave no particulars of her complaint and the questions which she was unable to respond. She was asked to identify the questions she complained of. She said she could not recall. Her complaint is a mere allegation. The Court repeats its observation in the above paragraph about the utterly fair attitude of the Board. There is no substance in this complaint. Ground (5): failing to take such argument into account or give weight to such argument 23.The Applicant complained that the Board failed to take such argument into account or give weight to such argument and that this is a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. She also complained that the Director failed to attain the high standard of fairness required by the Wednesbury test. This is a wrap up ground of procedural unfairness and irrationality. Accepting for her benefit that this complaint is also applicable to the attitude of the Board, the Applicant had given no particulars of the unfair attitude complained of. At the hearing, she was asked to identify the argument which she complained the Board had not taken into account or given any weight. She was unable to. Doing its best, this Court could only undertake a comprehensive and rigorous examination of the Decision with anxious scrutiny for errors of law, procedural unfairness and irrationality in the Decision. 24.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected her evidence that she was ill-treated because of her involvement in the BNP which is the centerpiece of her case: see paragraph 62 of the Decision. This finding is fatal as the Applicant bears the burden of proof. She has failed to discharge her burden of proving the factual basis in support of her claim for non-refoulement protection. The Board also found that she could avoid the risk of harm by internal relocation. The Board therefore found as a matter of law that she is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 25.The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively 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 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Ground (6): The Decision is irrational as the Board should have allowed the appeal 26.This is another un-particularised complaint of irrationality. In essence, the Applicant disputes the outcome of the appeal. She is challenging the finding of fact of the Board. As mentioned in the above section, having rigorously examined the Decision with anxious scrutiny, the Court is unable to find any errors of law, procedural unfairness and irrationality in the Decision. Conclusion 27.For the above reasons, the Applicant’s application for leave to apply for judicial review of the Decision is refused. Dated the 6th day of February 2023
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] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment
Further hearings and rulings under HCAL 371/2022