PERVIN JAHANARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1098/2019

[2022] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1098 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;

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 15 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

3.  The applicant did not respond to the court’s letter.

4.  Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

            Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.

The applicant

5.  The applicant is a national of Bangladesh.  She entered Hong Kong as a domestic helper on 20 November 2014 and she was permitted to stay until 20 December 2016. She overstayed and was arrested by police on 9 August 2017. She was referred to the Immigration Department. By written representation dated 12 August 2017, she lodged non-refoulement claim.

6.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by the people from the Awami League (“AL”) because she was a member of the Bangladesh Nationalist Party (“BNP”).

7.  According to the applicant, she was an active BNP member since 2008 and became a women force fighting against the AL. Her job in BNP was to gather the underprivileged women and championed for their right and inspired them to fight against corruption. She became a target of the AL. She had built 10 houses for rent in her locality. The AL had dispossessed 8 of them by force. She received regular threat from the AL, forcing her to leave the BNP. But she ignored the threats. On 6 January 2014, the AL people came to her house and beat her and her husband. They burnt down her house. She was seriously injured and fell unconscious. Her husband’s injury was less serious. She woke up and found herself in hospital. Her spinal cord was beaten by a wooden stick. She moved to live in Mr. Alim’s house, which was about 45 minutes’ drive from her home. She stayed there for 4 months without any event. Mr. Alim is a US citizen. He decided to return to the US with his family. Mrs. Alim found advertisement in the television hiring domestic helpers in Hong Kong. She suggested her take the opportunity. Mr. Alim paid money for her training as a domestic helper. She stayed in the training centre for 5 months. After the training, she came to Hong Kong on 20 November 2014 and worked as a domestic helper. Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

8.  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.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

9.  By the Director’s Decision, the Director refused the applicant’s claim on all grounds.  The Director found that the level of risk of harm against the applicant from her enemies upon refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[16]; (ii) state protection would be available to her [18]; and (iii) internal relocation was an option open to her [20]-[21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board and attended the oral hearing on 28 November 2018.

11.  The Board proceeded to consider the applicant’s claim and for the reasons given in paragraphs 37 – 53, it came to its conclusion that it rejected her factual evidence that she feared any form of harm upon return to her country. Since the Board rejected her factual evidence, the Board found that it was unnecessary to consider internal relocation.  

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

12.  The applicant filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant set out the grounds as summarized below. I have to point out that from the context of the grounds, the applicant seemed to have copied the contents from another source as the gender is wrong and some of the contents are not relevant to her case.

(1)  The hearing bundle was only given to her together with the revised Skeleton Submission of the Director [which does not exist as the Director was not present at the hearing] shortly before the hearing, giving her limited time for her preparation.

(2)  The hearing bundle is in English. She was unable to get an interpreter at an affordable price for herself.

(3)  The Board did not notify her of its Decision by phone despite her request.

(4)  She was confused at the hearing and she did not understand what would happen in the hearing.

(5)  She had answered the questions with honesty and it aggravated him [her] that his [her] credibility was found questionable. The hearing was unfair for the reason that the hearing bundle was delivered to her shortly before the hearing.

(6)  The Board had relied upon materials which are not officially recognized or are simply hearsay. It also relied upon outdated cases, making its speculation.

(7)  The BOR2 risk was assessed without any screening by the Immigration Department. [In fact, BOR2 was not separately assessed.]

(8)  The Director and the adjudicator should go to her country to see the situation themselves.

DISCUSSION

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

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.  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.”

17.  The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application for the reasons below:

(1)  If she did not have sufficient time to prepare her case, she should have told the adjudicator and asked for an adjournment. This was not recorded in the Board’s Decision. In fact, as she said, she had answered the adjudicator’s questions. The Board found against her because of the evidence she had given before the Board. There is no evidence that she did not know what happened at the hearing. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” The Board has no obligation to notify her by phone. The absence of this service will do no injustice to her case. Grounds (1) to (5) fail.

(2)  Ground (6) is only her opinion without any evidence in support.

(3)  Ground (7) fails because this is not the fact.

(4)  Ground (8) fails because the Director or the adjudicator can rely upon the country of origin information without going to her country themselves.

18.  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.

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.

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