Farida Begum v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 787/2019

[2023] HKCFI 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 787 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 11 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.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

4.The applicant is a national of India.  She entered Hong Kong with her two daughters as visitors on 24 May 2014.  They were permitted to remain until 7 June 2014.  However, they did not depart and had overstayed since 8 June 2014.  On 11 June 2014, they surrendered to the Immigration Department.  On 25 June 2014 and 27 June 2014, they lodged their non-refoulement claims.  While the applicant’s daughters were before the Director and the Board, they did not seek to challenge the Board’s Decision by way of judicial review and thus are not the applicants in the present application.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband’s moneylender, Faiyaz Ahmed (“Ahmed”).  In 2008, the applicant’s husband borrowed a loan from Ahmed for his garment business.  However, in November 2008, her husband was defrauded by a customer. As a result, he was unable to repay the loan.  Despite Ahmed extended the deadline for repayments, her husband still failed to settle the loans. Thereafter, Ahmed threatened her husband and, in January 2009, he dragged her husband to the police station.  In the end of January 2009, Ahmed visited their house again and assaulted her husband.  Her husband subsequently left India and left the applicant to be the target of Ahmed.  Since then, Ahmed had been chasing the applicant for repayments.  Unable to cope with the mental stress from the threats, the applicant escaped to Channi Market.  However, Ahmed found them and sent people to threaten them.  Meanwhile, the applicant also suffered harassments from her husband’s ex-mistress Minu Begum.  Out of fear, the applicant and her daughters eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 22 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the claims of the applicant and her daughters 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”).

7.By way of the Director’s Decision, the Director dismissed their claims as their claimed fear of harm was groundless.  In elaboration, the Director found that (i) the absence of past ill-treatments, Ahmed and Minu’s conducts, and the applicant’s own behaviors, all indicated an unlikelihood of future risk of harm [12]-[16]; (ii) state protection would be available to them [17]-[18]; and (iii) internal relocation was a viable alternative [19]-[20].

The Board’s Decision

8.The applicant and her daughters appealed the Director’s Decision to the Board.  On 12 November 2018, the Board conducted an oral hearing for their appeals.

9.The Board considered the applicant’s assertion that state protection was not available to them in light of the country of origin information [130]-[151].  It concluded that there were adequate channels for the applicant to address her concerns against the harassments from Ahmed and Minu [152] and that there was no state involvement [153].  Meanwhile, the applicant failed to prove that the influence of Ahmed and Minu was as extensive as claimed [153]. In light of this finding, the Board proceeded to consider the issue of internal relocation and found that it was a viable option for the applicant and her daughters to relocate [155]-[163].

10.For the above reasons, the Board rejected the claims of the applicant and her daughters and dismissed their appeals.

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

11.The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant did not raise any specific ground.

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.There is no valid ground 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 30^th day of March 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