GHOP SHIMA RANI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 731/2019

[2021] HKCFI 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 731 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:

1.  The applicant is a Bangladeshi national. She is an illegal immigrant. She applied to the Director of Immigration Department for non-refoulement claim.

2.  By Decision dated 30 November 2017 (“the Director’s Decision”), the Director rejected her claim and she appealed to the Board. By Decision dated 1 March 2019 (“the Board’s Decision”), the Board refused her appeal.

3.  The applicant filed Form 86 on 15 March 2019 for leave to apply for judicial review of the Board’s Decision (“her application”).

4.  The applicant filed an affirmation on 5 February 2021 and applied to withdraw her application for the reason that her problems in her country had been solved and she wanted to go back to her own country.

5.  In the circumstances, it was clear that the applicant had no intention of proceeding with her application, which should be dismissed.

6.  Accordingly, I acceded to her request and dismissed her application.

7.  When the Decision was about to be published and sent to the applicant, the Court Registry received another affirmation dated 1 March 2021, in which the applicant applied for re-opening her application for leave to apply for judicial review, saying that her problem had not been solved in her country and she would not return home.

8.  In her affirmation, the applicant has not explained why she changed her evidence in her previous affirmation applying for withdrawal of her application.

9.  I shall, however, consider the merit of her case.

THE APPLICATION

10.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

11.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

12.  The applicant is a Bangladeshi national.  She came to Hong Kong to work as a domestic helper on 12 November 2014. Her employment contract was prematurely terminated but she did not leave Hong Kong. She was arrested by police and referred to Immigration Department. On 29 March 2015, she lodged her non-refoulement claim with the Immigration Department.

13.  The applicant claimed that, if refouled, she would be harmed or killed by Islam extremists in her area because she belonged to Hindu minority. The majority in her locality was Muslim. She belongs to the minority and was always discriminated by the Muslims. She was raped by a Muslim in Bangladesh. She gave birth to a daughter. She is still traumatized by the experience of rape. She dared not report the matter to police because she was afraid that severe revenge would be taken by the Muslims. Details of the incidents are set out in paragraph 6 of the Director’s Decision.

The Director’s Decision

14.  The Director considered her application in relation to the following risks:

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

(2)  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”);

(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”).

15.  By the Director’s Decision, the Director refused her claim for the reason that it was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real risk of her being harmed or killed by the Muslims upon her return to Bangladesh [11]; that state protection was available to her [14] and that internal relocation was an option open to her [17].

The Board’s Decision

16.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 16 November 2018 and 18 December 2018 respectively. She was legally represented.

17.  The Board rejected her appeal and affirmed the Director’s Decision.

18.  The Board considered the applicant’s evidence and found that it accepted that she had been raped in Bangladesh and that she had moved and stayed in different places. But it did not accept that she would be subjected to risk of harm as she still worked in the same factory which she said that she was in fear of. She did not have a genuine fear of real risk of harm. [39-40] The applicant did not appear to be facing real chance of harm. [43] There was no evidence that the state was involved and on the contrary, state protection should be available to her. [44] Based on the above reasons, the Board rejected her claim on Torture risk [46]; Persecution risk [51], BOR 3 risk [53] and BOR 2 risk [54]. The Board further considered that internal relocation would be available to her too. [57]

Application for leave to apply for judicial review

19.  The applicant filed Form 86 on 15 March 2019 for leave to apply for judicial review of the Board’s Decision. In her affirmation in support of her application, she said that:

(1)  the Board was unfair in that its conclusion was based upon her credibility, however, it did not provide a considered approach in respect of evaluation of the material matters, which is contrary to high standard of fairness;

(2)  the Board had failed to consider the actual bodily injuries to the applicant as it simply said that it accepted that the applicant was raped and that she suffered injuries;

(3)  the Board had failed to consider that the applicant suffered from torture, cruel and inhuman treatment physically and mentally and the applicant considered that her claim should be under section 37U of the Ordinance.

DISCUSSION

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

21.  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.”

22.  The applicant’s grounds in support of her application are taken on board.  Firstly, the Board did not say that her evidence was wholly incredible.  It accepted her evidence that she was raped in Bangladesh.  Secondly, it did not accept her evidence that she had real risk that she would be subjected to torture or cruelty or inhuman treatment if she returned to Bangladesh.  Thirdly, the Board had asked about her injuries and the consequences on her.  She said it was not serious.  See paragraph 33(d) of the Board’s Decision. In fact, the Board had set out the precautions that it should take in evaluating her evidence as a matter of legal principle.  It stated that her evidence was unreliable and she was evasive in giving evidence, particularly on the reasons why she did not report the matter to police or go to the doctor and the reason why she remained working in the same factory where she was raped.  The Board was careful in treating her evidence and came to its conclusion that it accepted her evidence of her having been raped on the one hand, but disbelieved her that she had a genuine fear of being subjected to the risk of harm if she returned to Bangladesh on the other.  The Board’s analysis of the evidence can be seen in paragraphs 32-40 of the Board’s Decision.

23.  The applicant’s ground in support of her application are not accepted.

24.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

26.  I refuse the applicant’s application for leave 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