KHONDOIKER MOSAMMAT RUMANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 643/2019

[2022] HKCFI 2583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 643 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 26 February 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. 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 had been a foreign domestic helper in Hong Kong since 14 October 2014. Her last employment contract was terminated prematurely on 4 January 2018. She did not depart within the limitation of stay and had overstayed since 19 January 2018. On 1 August 2018, she was arrested by the police. On 7 August 2018, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband Rassel Ali Molla (“Rassel”) and her uncle Khondoiker Anwar (alias, Chand). Both of them were supporters of Awami League (“AL”).

6.  According to the applicant, she married Rassel in 2003. Rassel had been abusive in their marriage. He often demanded money from the applicant. In mid-2013, Rassel attacked her for her father’s inability to pay him money on her behalf. Unable to cope with the abusive conducts, the applicant decided to file a divorce. However, Rassel chased her down to her parents’ house and threatened to kill her. The applicant escaped to her cousin, Dina’s house. Yet, in January 2014, Rassel found her and assaulted her. The applicant eventually fled to Hong Kong to avoid Rassel. Insofar as Chand was concerned, the dispute with him arose from a land dispute. The applicant’s father was framed by Chand for a murder case as he refused to give Chand their family land. Although her father was eventually released, they had been on bad terms with Chand. In the applicant’s trip back to Bangladesh in 2017, Rassel and Chand visited her parents’ house, asked for her whereabouts and threatened to kill her if she returned. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 1 November 2018 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:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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 on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the alleged past ill-treatments indicated an unlikelihood of future risk of harm [13]-[18]; (ii) state protection would be available to her [19]-[20] and (iii) internal relocation was a viable alternative [21]-[25].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 28 January 2019, the Board conducted an oral hearing for her appeal.

10.  The Board observed that the applicant failed to produce any objective evidence for her claim, such as documents showing her father’s legal title over the disputed land [21]. It considered the internal credibility of the applicant’s evidence and the country of origin information. The Board noted that Bangladesh had taken steps to prevent violence against women [31], that the applicant never sought help from the authorities [32], and that there was no evidence of state involvement in both disputes [33]. Further, the Board found that Rassel and Chand would not inflict any harms on her for the land since her father, the claimed legitimate owner of the land, was still alive [45]-[46]. In this premise, the Board found that the applicant’s claim lacked credibility.

11.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

12.  The applicant filed Form 86 dated 6 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant said she only received the hearing bundle 6 days before the hearing. The contents of it is in English and she did not understand it. At the hearing, she was confused. But she had answered all the questions from the Board. The Board had considered the news, the source of which is outdated or hearsay, not recognized officially. The Board therefore had made speculation that it is safe for her to return to her country.

DISCUSSION

14.  The Court will bear in mind that the Board’s Decision 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 grounds raised by the applicant in paragraph 13 above do not assist her. She did not tell the Board that she was confused by the hearing bundle. On the contrary, she said that she had answered the questions put to her by the Board. As to speculation of the Board, it is only her bare assertion without any evidence in support. The applicant has not raised any valid ground in support of her application.

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