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

HCAL 1596/2019

[2024] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1596 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

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 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 30 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 January 2019 (the “Notice”).

2.On 1 August 2022, the registry received a Notice of Change of Address (“the Notice”) from a person claiming to be Sultana Sarmin, a name identical to that of the Applicant’s in this case but under a slightly different case number of HCAL 1569/2019. Upon verification, it was discovered that the applicant of HCAL 1569/2019 is not known by that name. The signature on the Notice is also very similar to that of the Applicant’s on the Form 86, the supporting affirmation as well as another earlier Notice of Change of Address dated 20 September 2021. Given the similarity in the name, the case number and the nature of the application, the Court is satisfied that the Notice was issued by the Applicant of HCAL 1596/2019 but with the case number misquoted. The Notice was returned to her with a message that she is not a party to that case, with the hope that she will re-file a proper Notice quoting the correct case number. Though she did not respond, the Court accepts the Notice as effective.

3.In the course of processing her application, a letter inviting the Applicant to file submission was sent to her on 8 November 2023 by post to her last known address updated by her in August 2022 by the above Notice. She did not respond. After the hearing was scheduled, a notice of hearing was similarly sent to her by post on 27 December 2023. Neither the letter nor the notice of hearing has been returned through the post. The Applicant never informed the court of any other change of address. There is nothing to suggest that she had not received the letter or the notice or had moved. She did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

4.The Applicant is a Bangladeshi national. She last entered Hong Kong on 6 July 2018 to work as a foreign domestic helper. Her contract was prematurely terminated but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authoritieson 5 October 2018. On 13 November 2018, she raised a non-refoulement claim. In due course, 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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

5.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 her screening interview in the presence of her lawyer. In gist, she claims that she would be harmed by members of the Awami League political party (“AL”) upon her return to Bangladesh because of her affiliation with the Jamaat-e-Islami political party (“JEI”) and by an extortion syndicate operated by a particular member of AL called Tuhin and his associates who wanted to extort money from her.

6.The Applicant, now aged 37, was born and raised in Sonadanga, Khulna, Bangladesh. She had twelve years of education and fourteen years’ working experience as a private tutor, cashier, a domestic helper in Dhaka and a foreign domestic helper in Hong Kong.

7.She claims that her mother was the Amir[5], a leader, of a JEI women committee covering five police station districts. Her mother preached religiously as well as politically. Between 2005 and 2011, the Applicant served as a member and later assistant Amir of that JEI committee. At the screening interview, she told the immigration officer that her mother’s role was reading the holy book, Quran, biography of Prophet Mohammad, Hadis and Milad, which are all about Islam. The Applicant carried the books for her mother, arranged the seating or performed her mother’s role in her mother’s absence.

8.Her mother was arrested twice for suspicion of possession books about bomb making and of being a member of the “IS”. But was released upon the Applicant’s proof that her mother was involved only in religious activities and not involved with “IS”.

9.In 2008, the AL became the ruling party in Bangladesh and the JEI was declared illegal by the Supreme Court of Bangladesh. JEI leaders were persecuted by AL. Between 2014 and 2018, the Applicant went to work as a foreign domestic helper in Hong Kong.

10.The Applicant claims that when she came back to Bangladesh in May 2018, Tuhin demanded 1,000,000 Taka from her, claiming it was for a festival called EID. He threatened to harm her then 11-year-old daughter if she failed to pay within 3 days. The Applicant refused.

11.On 10 June 2018, the Applicant was abducted at gunpoint by seven to eight people associated with Tuhin. She was held captive for five days. During her captivity, she was repeatedly beaten with an aluminium rod every two hours for the first two days. She was hit primarily on her shoulders and upper body, resulting in open wounds on her head and on the middle finger of her right hand when she tried to fend herself. She was also punched in the face, which caused an open wound on the outer corner of her right eye. The scars from these injuries were still visible at the time of her claim.

12.On the fifth night of her captivity, she bought her way out from a sympathetic guard with her gold ring. She did not return home but sought refuge initially at a religious site in District Faridpur and then at a friend’s home in Narayanganj. During that period, her persecutors set fire on her house. Her mother was hit by an axe when tried to stop the arsonist and die of head injuries. Her daughter suffered a burnt arm. On 6 July 2018, the Applicant returned to work in Hong Kong.

13.The Applicant claimed that the police were in collusion with Tuhin and JEI leaders had been arrested by the police on fictitious charges in the past. Hence, she could not access state protection. She also claims that internal relocation would not be feasible because her persecutors could locate her through AL’s extensive network. Hence, she claims it would not be safe for her to return to Bangladesh.

The finding of the Board

14.The Applicant testified before the Board. The Board found she gave changing and uncertain account as to when she joined JEI. In her NCF, she said she joined in 2005, but at the hearing, she said she joined with her mother in 2003. That inconsistency is not critical. But it was also her evidence before the Board that she and her husband relocated to Dhaka for three years from 2004 to 2007 where she settled down to her married life with a job in Dhaka. In the circumstances, the Board did not find it credible that she was helping her mother’s work in Khulna between 2004/2005 and 2008 when she was busily engaged with her own life in a different part of the country.

15.The Board tested her evidence about her and her mother’s membership in JEI against authoritative and credible country of origin information (“COI”). According to the COI, the female wing of JEI is headed by Secretaries and JEI does not accord the title of “Ameer” to their women counterparts. Also, JEI officals of the Central Organisation have a term of three years, those at the District/Metroolitan level have a term of two years, and those at the Upazila/Thana/ Municipality/Union/Ward level have a term of one year only. These COI are at odds with the Applicant’s claim that her mother held the office of Amir for two consecutive terms of five years each making a total term of ten years. She was unable to tell the Board how her mother obtained the post of an Amir, though at the end, she said her mother went through an election. She was unable to provide an account of her mother’s participation in JEI political activities. All that she could say was that she and her mother were committed to preaching the Islamic religious belief.

16.More importantly, in answer to the Board’s question as to what she had done for JEI, the Applicant said she had really done nothing. It was inconceivable that she did not talk about any of the ponderous topics such as the setting up of the International Crimes Tribunal by the AL government, the prosecution and death sentences passed on many of the JEI leaders. On the other hand, the Board noted that the Applicant’s mother had been released twice in connection with suspicion of possession of books about making bombs and of being a member of “IS”, indicating that she was not politically active. In fact, the Applicant had told the Bangladeshi authorities in around 2010 that her mother was only involved with the JEI religiously.

17.At the highest, the Board accepted that the Applicant and her mother were Islamic followers who preached Quran to a group of Islamic followers. Her evidence did not show any political involvement on their part. It did not accept that she or her mother were officials or members of the JEI or that they had faced harm in the past for political reasons.

18.There was no evidence that the Applicant had been subjected to harm or risk of harm from any AL members apart from the extortion by Tuhin. She had no problem with her husband who was an AL member. Though she gave inconsistent account of her encounter with Tuhin, the Board accepted she had been a victim of extortion. But it did not accept her claim that the police would not render her assistance because Tuhin’s relative was a police officer. In fact, Tuhin’s warning to the Applicant not to complain to the police is an indication that he is somehow fearful of legal sanction. The release of her mother twice is also an indication that the police acts fairly and is not a tool of oppression of the ruling party.

19.The Applicant provided photographs showing her injuries during her kidnap incident, her mother’s head injuries, her daughter’s injuries and the arson of her house, but provided no police or news report to show what the photographs were about or the cause of the fire. While accepting that the Applicant had been a victim of extortion by Tuhin, it was her decision to not report Tuhin to the authorities. On the basis of authoritative and credible COI, the Board was satisfied that despite some defect in the Bangladesh police, adequate state protection was available.

20.Assuming Tuhin to be as powerful as the Applicant feared, the Board considered his influence would be localised. The Applicant could avoid the risk of harm from Tuhin on her return to Bangaladesh by relocating to places other than Khulna. As the Applicant had demonstrated herself to be resourceful and a person of a strong character, it would not be unreasonable to expect her to so relocate.

21.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

22.The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

23.The Applicant annexed a two-page document titled “Grounds On Which Relief Is Sought”. She also filed a three-page affirmation which expanded on that document. Her grounds of application are found in the section titled “Factual Background”. These are as follows:

(1)  she did not have enough time to prepare for the appeal (Paragraph 4);

(2)  lack of language assistance (Paragraph 5);

(3)  she was confused (Paragraph 7);

(4)  it was unfair that she was disbelieved (Paragraph 8); and

(5)  the Board relied on COI which is not officially recognized or is hearsay.

Grounds (1) and (2) – Insufficient time to prepare for the hearing and lack of language assistance

24.These two grounds are related and should be considered together. The Applicant claims that she did not have enough time to prepare for the appeal as she received the appeal bundle only six days before the hearing, which included an intervening weekend of two days. The majority of the documents are in English and she did not have financial means to engage reasonably cheap interpreter to translate the documents for her.

25.On the language issue, the Court of Appeal held in Karamjit Singh[7] that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community. There is a sizeable Indian/Pakistani/Bangladeshi community in Hong Kong, from which she could seek assistance. There are many foreign domestic helpers from those countries working in Hong Kong, including her niece, though it is not sure if she was around at the time. Indeed, the Applicant was able to file an adequately well written affirmation in English.

26.Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI. The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service. She knows what is contained in the record of screening interview which she attended with the assistance of an interpreter and legal representation. The record had been read back to her in her own language, and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. The Notice and COI are in English and unfortunately have not been translated. The Duty Lawyer Service had most probably discussed the contents of the COI with her when representing her before the Director. As mentioned above, she should not do nothing and expect the host country would translate the documents to her as and when she requires. She has to find assistance herself from among her friends and her ethnic community.

27.The Applicant complained that excluding the two-day weekend she only had four days to prepare for the appeal. On the face, a period of four days appears to be short. However, she should not indulge herself for the weekend and forget about her appeal as if she were a tourist visiting Hong Kong. Furthermore, having regard to fact that she should be familiar with what is contained in the hearing bundle, the period is not inadequate. Besides, time should start to run, not from the day of receipt of the hearing bundle, but from the date of receipt of the Notice which she sought to appeal, if she was serious about the appeal. The Notice was issued on 14 January 2019. The oral hearing was held on 2 and 11 April 2019. In between, she had almost three months to find out what the appeal bundle is about. In addition, she had another nine days in between the two dates of hearing for her to catch up. In any event, if she need more time for preparation, she could have raised that with the Board at the hearing. There is no substance in these two grounds.

Ground (3) – The Applicant was confused

28.The Applicant claims she was confused and did not know what happened at the hearing. Being a foreigner and being engaged in proceedings over such serious issues, she may be confused. But she is no stranger to Hong Kong. She first came to work in Hong Kong in 2014, about five years before the hearing. At the hearing, she had all the assistance she could have from the Board. For example, she told the Board that she wanted to abandon her appeal in respect of her claim under BOR 2 and Torture Risk grounds as she was under a misapprehension that she would be released from immigration detention if she did. The Board took no advantage of her misunderstanding, corrected her misapprehension and considered her appeal on all applicable grounds. The Board observed a high standard of fairness. Even if she were confused, there is nothing to suggest that she had been prejudiced and taken advantage of.

Ground (4) – Unfair that she was not believed

29.The Applicant claims that she had the truth and it was unfair that she was not believed. This is in every respect an attack on the finding of credibility of a witness, which is a finding of fact solely within the province of the Board to make, which the court in a judicial review may not intervene, save for errors of law, procedural unfairness and irrationality. This Court cannot detect any such vitiating elements in the Decision or in its making.

Ground (4) – COI is not officially recognized or is hearsay

30.The COI relied on by the Board are all from official, authoritative and credible sources, including Bangladesh Country of Origin Information (COI) Report and Country Policy and Information Note: Background information, including actors of protection and internal relocation, Bangladesh published by the United Kingdom Home Office; and Country Report on Human Rights Practices – Bangladesh published by the United States Department of State. On information about JEI, the Board referred to its official web-page at https://www.jamaat-e-islami.org/en/category.php?cid=8 and articles by distinguished authors, including Religion and Politics: A Study of Bangladesh Jamaat-e-Islami written by Upendra Kumar for the Asian Research Consortum,published in the Asian Journal of Research in Social Sciences and Humanities, Vol 7, no.5, May 2017 at 146-165 and Jamaat-E-Isolami in Bangladesh Past Present and Future published by the European Foundation for South Asian Studies, Amsterdam of February 2016.

31.The information is contemporaneous and not outdated. Having regard to the nature of the information, it must contain an element of hearsay. The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information. The information is credible. Furthermore, the Board had carefully considered the information. As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc. It is a finding of fact solely within the province of the Board.

32.Other than making a bald assertion of unreliability, out-datedness and hearsay, the Applicant provided no particulars of any credible up-to-date information, not even any hint as to any possible source of such information, not to mention her failure to provide any up-to-date publication contradicting these COI. The Court considered the complaint absolutely groundless.

Overall scrutiny of the Decision

33.Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant. The Court is also 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 and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claim. The Applicant’s claim is founded on her fear of harm by AL members generally and by Tuhin and his associates in particular. The Board had carefully weighed the evidence and assessed her credibility. Despite some inadequacies in her evidence, it accepted her claim of fear of harm and risk of harm from Tuhin as credible but rejected her claim of fear and risk of harm from AL generally as not substantiated. However, it found on the basis of authoritative and credible COI, that she could reduce or avoid that harm and risk of harm from Tuhin by seeking state protection and internal relocation. It gave detailed reasons for its finding. The Board’s Decision is a finding of fact which is 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. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered her grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

34.For the above reasons, leave to apply for judicial review is refused.

Dated 19^th day of February 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