Khatun Mst Momotaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 955/2019

[2023] HKCFI 2443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 955 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 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed on 30 January 2023. However, the applicant was absent without prior notice to the Court. Her application is therefore dealt with 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 Bangladesh. She last entered Hong Kong as a foreign domestic helper on 21 April 2015. However, her employment contract was prematurely terminated on 19 February 2016. She was required to depart within two weeks. Yet, she did not depart and had overstayed since 5 March 2016. On 29 March 2016, she surrendered to the Immigration Department. On 15 September 2016, she lodged a non-refoulement claim on the basis of a risk of harm from members of Awami League (“AL”).

5.According to the applicant, she was a supporter of the Bangladesh Nationalist Party (“BNP”). From 2001 to 2006 when the BNP was the ruling party, she often attended the party rallies and gatherings. In 2009, the AL took over and became the ruling party. They started targeting the BNP members. In the applicant’s locality, the local AL leader Khokon Chairman (“KC”) resented the applicant’s family because of their BNP memberships. On 25 March 2013, KC sent his right hand man Moru Mollah to the applicant’s house, with a gun pointing at her father’s head, asking him to switch his support to the AL. Later, on 10 May 2013, Moru came again with twenty followers. They threatened the applicant’s family, destroyed the properties in the house, and Moru attempted to rape the applicant. The applicant and her family’s complaints to the police station were of no avail. On 5 August 2013, KC and Moru again came with some followers, assaulting the applicant and her father, and robbing the valuables from the house. They demanded ransom with death threats. The applicant’s attempt to seek protection from the police station again failed.

6.Later, on 7 January 2014, after the AL won the general parliament election, KC and his people came to the applicant’s house. They vandalized the house, and threatened the applicant and her family. They also attacked the applicant with a stick. Out of fear, the applicant escaped to Bogra before coming to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 2 November 2017 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 the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) her delay in seeking protection in Hong Kong was inconsistent with her claimed fear of harm [16]; (iii) state protection would be available to her [17]-[19]; and (iv) internal relocation was a viable option [20]-[21].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board conducted an oral hearing for her appeal, during which she testified.

10.The Board considered the applicant’s claim made before the Director and to the Board [9]-[36]. At the outset, the Board allowed the applicant’s late filing [38]-[40]. It proceeded to examine the country of origin information (“COI”) about the political environment in Bangladesh [41]-[44]. The Board accepted that there were ongoing disputes and violence between the BNP and the AL [45]. However, having considered the applicant’s evidence, the Board found that she was not a truthful witness [46]. In particular, the Board found that there were inconsistencies in the applicant’s evidence, such as when the applicant became a member of the BNP; which branch she joined; and details of the incidents occurred [47]. It therefore refused to accept that the applicant’s claimed membership with the BNP [48]-[49].

11.In addition, the Board considered the applicant’s immigration records to Hong Kong and found that her delay in seeking a non-refoulement protection failed to indicate a fear of harm if refouled [50]-[51].

12.For the aforesaid findings, 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 9 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 reiterated her story of coming to Hong Kong, without raising specific ground against the Board.

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 Board rejected the applicant’s evidence for the reasons stated above. The applicant has raised no valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 3^rd day of October 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