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

HCAL 1129/2019

[2023] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1129 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision.

2.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court. However, she was absent at the hearing.  I shall deal with her application on paper.

The applicant

3.The applicant is a national of Bangladesh.  She entered Hong Kong as a foreign domestic helper on 29 March 2014 and was permitted to remain until 29 March 2016 or two weeks after the termination of the contract, whichever was earlier.  Her employment contract was prematurely terminated on 1 November 2014.  She did not depart within the time limit and had overstayed since 16 November 2014.  On 8 February 2015, she was arrested for overstaying.  On 11 February 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the supporters of the Awami League (“AL”).

4.According to the applicant, she was an unofficial supporter of Bangladesh National Party (“BNP”) and her main responsibility was to meditate the disputes between members of BNP and AL.  Her husband Helal, a member of the AL, often persuaded her to join the AL but she always refused.  

5.In December 2013, there was rumor that AL would win the majority in the general election and the BNP planned to boycott the election.  Upon knowing this rumors, the applicant was told to work overseas, an advice that she treated as a sign of asking her to leave because of a potential risk of harm. In mid-January 2014, the AL won the general election.  The applicant learnt that the AL members would revenge against the BNP members. 

6.A few days later, around 100 to 150 AL members and supporters visited the applicant’s house, attacking the applicant and wrecking her house.  While her daughter was not harmed, the kid was traumatized.  As her attempts to seek help from the village head and the BNP members failed, she decided to flee to Hong Kong.  In 9 March 2018, the applicant’s mother informed her of a death of a girl who also worked as a meditator as the applicant.  Out of fear, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 12 April 2018 by the Director (the “Director’s Decision”).   

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed her claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated a small future risk of harm [13]; (ii) it was not accepted that she would be adversely targeted by the AL members upon refoulement [14]; (iii) her claimed risk of harm was not serious or imminent [15]; (iv) state protection would be available to her [16]-[19]; (v) internal relocation was a viable option [20]-[24].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 4 December 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [27].

10.The Board recapped the applicant’s claim and her personal background [10].  The Board noted that the country of origin information was consistent with the applicant’s claimed political violence between the AL and the BNP [30].  Nevertheless, it noted that the violence was of low level [31].  The Board inquired the applicant of her position in the BNP and found that her role was also of low level [32].  She failed to provide any persuasive evidence of her claimed support for the BNP [32]-[33]. 

11.Meanwhile, the Board found it illogical that the AL members would attack her in-law’s house when her husband was a committee member of the AL and her explanation that her father-in-law and brother-in-law were members of the BNP was a new information [35].  Her shifting evidence on the details of the attack also undermined her credibility [36].  Meanwhile, her claimed medicine treatment of her multiple fractures was also unreasonable and thus rejected by the Board [37].  As to the husband, the Board found that, based on the circumstances, it was unlikely that she would face any risk of harm from her husband [39]-[44].

12.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

13.The applicant has filed Form 86 dated 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant raised the grounds below.

(1)   The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement.

(2)   The adjudicator acted in a procedurally unfair manner in dealing with her appeal: the hearing bundle was sent to her shortly before the hearing with documents in English. She was unable to find a cheap interpreter. She was confused at the hearing. But she had answered the Board’s questions.

(3)   The Board had relied upon news the source of which is not officially recognized or hearsay and cases which are outdated, resulting in its speculation that it is safe for him to return to his country.

DISCUSSION

15.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).

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

17.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.

18.The grounds in paragraph 14 do not assist her application. Grounds (1) and (3) are her bare allegations without evidence in support. As to ground (2), the applicant did not ask for an adjournment from the Board for better preparation of her case. In fact, she had answered all the questions put to her by the Board. Her allegation of being confused at the hearing is only a bare allegation. There is no valid reason from the applicant to challenge the Board’s Decision.

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

CONCLUSION

20.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 24^th day of August 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