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

HCAL 1234/2019

[2024] HKCFI 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1234 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 17 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed to be heard on 19 April 2023. However, the applicant was absent without prior notice to Court. Her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Bangladesh.  She entered Hong Kong as a foreign domestic helper on 17 September 2015.  However, her employment contract was prematurely terminated on 4 February 2016.  She did not depart and had overstayed since 19 February 2016.  On 23 June 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by Montu or his people from the Bangladesh Awami League (“AL”) because of an outstanding debt. 

4.In short, the applicant took out a loan from Montu for her husband’s medical expenses in the end of 2012.  She was able to repay the monthly interests for a few months.  In early 2013, she started to default the loan payments.  Meanwhile, her husband died in early 2014.  Since then, Montu had been harassing her for the loan payments and also he knew that she was a supporter of the Jamaat-e-Islami Party (“JIP”) which was the political rivalry of the AL.  In one incident, the applicant’s house was destroyed and she was assaulted by the AL members.  Unable to tolerate Montu’s harassments, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraphs 5 to 17 of the Notice of Decision dated 12 June 2017 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.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [24]; (ii) state protection would be available to her [25]; and (iii) internal relocation was a viable option [26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 5 and 7 September 2018, the Board conducted the oral hearing for her appeal, during which she was assisted by an interpreter [4].

8.Having considered the evidence, the Board made the following findings. At the outset, the Board accepted that the applicant had to borrow a loan for her husband’s medical expenses [41]-[45].  However, in terms of the alleged harassments from Montu and his followers, the Board noted that the applicant’s evidence contained numerous discrepancies, such as the claimed harassments and the attacks [47]-[52]; and her claimed political support for the JIP [53]-[59].

9.As a result, the Board rejected the applicant’s assertions that Montu had involved in the attack against her or that she was involved in political activities [60].  In summary, the Board found that, while it accepted the existence of Montu’s harassments against the applicant, he or his followers had never harmed the applicant or destroyed her house.  Nor did the Board accept that the applicant had political affiliations [60]-[65].

10.In light of the aforesaid findings, as well as the considerations of the applicant’s personal circumstances and the country of origin information, the Board refused to accept that the applicant would suffer any future risk of harm if refouled [66]-[72].  Therefore, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant had raised grounds in support of her application in her affirmation and on a list attached to Form 86. I shall summarize those grounds below.

(a)  The hearing bundle was given to her shortly before the Board’s hearing. She was not invited to make oral submissions before the Board. She was therefore deprived of the chance of making oral submissions before the Board. But she had answered all the questions with honesty.

(b)  The Board had relied on the source of the news which is not officially recognized or it is simply hearsay. It had also relied on some cases which are fairly outdated. All these had caused the Board to speculate that it is safe for her to return to her country.

(c)  The Board is in breach of procedural fairness: it had unlawfully fettered its discretion by refusing her appeal by saying that the grounds did not satisfy the requirement.

(d)  The Board’s Decision was unreasonable or irrational in the public law sense or are/a result of procedural errors or unfairness.

(e)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

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.The Board had, for the reasons given above refused to accept that the applicant will be subjected to any real risk of harm if she returns to her country.

17.The grounds in paragraph 12 above do not advance her application. The applicant did not inform the Board that she did not have sufficient time to prepare her case and asked for an adjournment. She admitted that she had answered all the questions put to her. The fact that she was not invited to make oral submissions is not a valid ground because she could have made her oral submissions without invitation from the Board. Until now, she has not been able to say what oral submissions she intended to make before the Board. Grounds (2) to (5) are bare allegations without any evidence in support. All the grounds are not valid reasons to challenge the Board’s Decision.

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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 18^th day of January 2024

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