NUPUR MST v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL430/2017

[2018] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 430 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Bangladeshi national who arrived in Hong Kong on 26 October 2013 and was permitted to remain until 26 October 2015 to work as a foreign domestic helper.  On 5 July 2014 her contract was prematurely terminated and she should have left within 14 days.  She overstayed and was arrested on 22 September 2015 by the police. She lodged a non-refoulement protection claim after her arrest but gave no indication of her reasons for claiming such protection.  One month later, on 23 October 2015 she lodged a claim again.  This claim was rejected by the Director of Immigration (“the Director”) on 18 April 2016 and 10 March 2017.  She lodged an appeal/petition with the torture claims appeal board (“TCAB”) which dismissed her appeal on 23 June 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 20 July 2017.  She did not ask for an oral hearing but because her affirmation contained no grounds, a hearing date was set down for 15 December 2017 to give her an opportunity to make oral submissions.  However, she was absent and told the interpreter over the telephone on that morning that she had moved home and changed address without informing the court registry which meant she had not received the notice of hearing.  I considered her application on the papers.

3.  The basis of her claim was that if she were to return to Bangladesh she would be harmed or killed by a group of Awami League (“AL”) members including Ara who is a leader of AL because the applicant was a member of the Bangladesh Nationalist Party (“BNP”) as well as a president of a BNP section.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend summarise it briefly here.

4.  The applicant was born in 1983, married in 1997, had a son in 2006 and joined the BNP as a member in 2003 under the influence of her husband who was a driver of BNP senior leaders.  The AL came into power in 2009 and the applicant’s problems started in about 2013.  In June 2013 the applicant was asked to gather female BNP members to a meeting of about 500.  After that meeting and on her way home with others, the applicant’s group was attacked by a group of about 40 AL members; some were carrying sticks.  The applicant escaped without injury according to one version of events or with a head injury according to another version.  She ran and did not look back.

5.  She ran to a friend’s home where her husband called and said that AL attackers had gone to her home looking for her and threatening to kill her husband and son if they did not find the applicant.  One of the AL attackers was Ara.  The applicant hid at her friend’s home for a few days.  She did not report this to the police because of their close connection with the AL ruling party.  Whilst hiding at her friend’s home she saw an advertisement for recruitment of domestic helpers in Hong Kong and since her life was in danger from AL members she took it as an opportunity to leave the country and save herself.  She started training for this job in July 2013 and remained in hiding from the AL who were still looking for her and threatening her family.

6.  In August 2013 her husband was abducted and killed by the Rapid Action Battalion, an elite government force.  The applicant believed they were instructed by the AL to kill her husband because they could not find her.  The applicant finished her training course in September 2013 and flew to Hong Kong in October 2013.  Her son lived with her parents but after she arrived in Hong Kong she could not contact her parents; her neighbour and friend told her that a group of AL members had attacked her parents’ home at night after she had left.  The whereabouts of her parents, siblings and her son were now unknown.

7.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator treated the appeal/petition as a rehearing and arranged for an oral hearing.  On the day of the hearing, 15 June 2017 the applicant was late.  The applicant was contacted on her mobile phone and she informed the adjudicator’s office that she was on her way from Tsimshatsui to the TCAB offices in Wanchai.  When she did not arrive after half an hour, the applicant was contacted again on her mobile phone but without success; there was no answer.  45 minutes after the scheduled time the adjudicator considered the applicant had failed to attend the hearing.

9.  Pursuant to the Immigration Ordinance, the TCAB directed that notice be given to the applicant and she was informed of a requirement to submit to the TCAB a written explanation of her failure to attend the hearing together with any documentary evidence to support explanation within seven days after the notice was given to her.  That notice was posted to the applicant that day.  It was also served on the applicant in person when she appeared at 4 PM at the TCAB office.  She was, by then one and half hours late.

10.  Her written explanation was that she could not arrive on time because she had had a headache all day and that on the way to the TCAB office she “got stranded.  I had to find the correct route to the office which took my considerable time and thus I was late to reach the office”.  The adjudicator did not accept that explanation because he considered the fact she had had ample notice of the date, time and venue of the appeal hearing.  She had lived in Hong Kong for over four years prior to the hearing date and her explanation why she was so late was not reasonable.  He was not satisfied she had a good reason for not attending at the appointed time.  He did not reschedule the appeal and determined the applicant’s appeal/petition in her absence.

The TCAB decision

11.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s claim and evidence.  He set out and cited relevant, objective, up-to-date and internationally recognised Country of Origin (“COI”) information that he relied on to find reasonable State protection in Bangladesh available to the applicant if she was at risk which would further lower or negate the level of risk of the feared ill-treatment.

12.  The adjudicator assessed the credibility of the applicant’s evidence whilst reminding himself that the existence of inconsistencies may not be fatal to her claim so long as the centrepiece of her story stands.  He reminded himself that there may be valid reasons for her not telling the truth or exaggerating.  He reminded himself that hearsay is admissible but the weight to be attached to it is greatly reduced.  Hearsay cannot prove the truth of facts asserted on the basis of such evidence.

13.  He considered her evidence and found that her claim was largely based on hearsay, bare assertions and speculation.  The weight that can be attached to hearsay evidence is greatly reduced.  Speculation cannot prove the truth of any fact.  There was no police report of any assault or threat or attack.  The adjudicator found there to be issues that made him doubt the truthfulness of her claim, such as the fact she could not recall the date of birth of her late husband and for her son she could only recall the year and not the date or month.  She could not submit any evidence of her marriage or her husband’s death or her son’s birth.  This last date, the birthdate of her only son the adjudicator finds hard to believe she cannot recall.

14.  The adjudicator noted she could not submit any evidence of her membership or her husband membership of the BNP.  In her NCF she described herself as an ordinary member who assisted her husband but in her interview she claimed she was a president of a woman’s section of the BNP.  Yet her description of the attack that day was not of an attack aimed at her personally nor was it a premeditated attack.  In her NCF she said she was luckily not injured but in a subsequent interview she said she was struck on the head with a brick and her head bled.  In her NCF she said she ran away to her friend’s home but in a subsequent interview she said she ran to see a doctor in a nearby pharmacy who treated her head wound.

15.  After she ran away from the melee, she did not come across, personally meet or confront any AL members again.  Everything that occurred after this attack was hearsay, speculation and bare assertions.  No reason is given for AL members coming to her home to look for her; for example, a personal grudge or revenge.

16.  The adjudicator concluded that her evidence was improbable and inconsistent which led him to doubt the truthfulness of her evidence.  He did not believe she was married, widowed and had a son. He did not believe that she was assaulted and threatened by AL supporters in her home village.  On that basis, she had failed to establish that she would face any ill-treatment if she returned to Bangladesh.

17.  The adjudicator then applied his findings to the law and four applicable grounds; he found the applicant had failed to show there are substantial grounds for believing that she would be in danger of being subjected to torture as defined by section 37U(1) of the Immigration Ordinance if she returned to Bangladesh.  In any event, according to the COI he found there to be available State protection if there was any risk as well as the option of internal relocation open to the applicant.  Her torture risk claim failed.

18.  As far as the BOR 3 risk is concerned, he found no evidence she would face ill-treatment that would attain a minimum level of severity and the applicant did not establish she faces a genuine and substantial risk of being subjected to such treatment.  There was also no risk of a violation of her right to life under BOR 2 therefore, her BOR 2 and BOR 3 risk claims failed.

19.  Lastly, the adjudicator found the applicant had failed to establish she had any fear of persecution for a Convention reason therefore, her persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

20.  The applicant filed an affirmation but it contains no grounds; she only submits that the decision to dismiss is wrong.  She submits she was not given enough time to submit supporting documents and will submit her husband’s death certificate.  She reiterates that she has enemies in a country and her life will be in danger if she returns.

21.  Notwithstanding the fact there are no grounds, I have considered with rigourous examination and anxious scrutiny the papers of this application.  I have considered the fact the adjudicator did not afford the applicant a second rearranged oral hearing after she was late for the original hearing.  Was it fair?

22.  The applicant was 90 minutes late for her hearing without a satisfactory explanation.  When she did not arrive on time the applicant said over the telephone that she was on her way and in Tsimshatsui which is not far from the Wanchai office of the TCAB by bus or MTR. When she had not arrived half an hour later, the TCAB called her phone again but she did not answer.  When she did eventually arrive, the appeal had adjourned which meant I am sure, the interpreter had been released. The applicant had no reasonable explanation except that she got stranded or got lost.  She did not elaborate or give a full picture of where she went during that time which made her so late.

23.  The adjudicator did not ask her to elaborate and applied section 15 of schedule 1A of the Immigration Ordinance Cap 115 and paragraph 11 of the petition guide.  The adjudicator was not satisfied with the applicant’s written explanation and determined the appeal despite her absence.  Was it reasonable or fair or a harsh decision?  It is harsh but not procedurally improper or irrational.

24.  The adjudicator has, despite her absence, carefully considered her claim and evidence.  He has made a finding on credibility and she has not had an opportunity to give any explanation on those inconsistencies he highlights which does trouble me.  However, it is not only inconsistencies that leads him to doubt her but also the implausibility of her evidence which comes from hearsay, speculation and bare assertions which could not have been improved by her presence and oral evidence at an appeal hearing.

25.  After considering his decision and his analysis of her evidence, I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

26.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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