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

HCAL 2458/2018

[2020] HKCFI 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2458 of 2018

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 be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a national of Bangladesh. She came to Hong Kong as a foreign domestic helper on 31 January 2015 and was permitted to stay until 31 January 2017. Her contract terminated on 31 January 2017. She applied for extension of stay on 1 February 2017 and was permitted to stay as a visitor until 14 February 2017. She overstayed. On 25 March 2017, she was arrested by police. She was referred to the Immigration Department for investigation on 26 March 2017. She lodged a non‑refoulement claim on 7 April 2017 and 9 May 2017.

3.  In support of her claim, she claimed that if she was to return to Bangladesh, she was in fear of being killed by the Awami League (“AL”).

4.  In her statements given to the Director and the Board, she said that her family used to be supporters of Jamaat-e-Islami political party (“JEI”). In 2009, the AL won the election and became the ruling party. The AL people visited her house and told them to convert to AL. Her parents were afraid and they moved the family to Dhaka. She continued to work for Chatra Shibir, a subsidiary of JEI. In a public demonstration of around 3000 people in 2013, a violent massacre took place as the police shot and hit the crowd. She escaped and moved to another place to live with her friend. She learned that the police had filed charges against the leaders of JEI. She did not want to live as a fugitive there. She learned that she could be a domestic helper in Hong Kong. Through the agency, she came to Hong Kong in 2015.

The Director’s Decision

5.  The Director considered her application 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 under RC”).

6.  By Notice of Decision dated 22 February 2018, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 16 August 2018.

8.  By Decision dated 26 October 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case carefully. It stated in its Decision:

“69. The Board has carefully the Appellant’s claims and had regard to the principles and the law as outlined above. Having done so, and having regard to the internal coherence of her statements, their consistency with each other and the relevant level of detail she has been able to provide, the Board has formed the view that the Appellant is not a witness of truth and that she has either fabricated or exaggerated her claims in relation to fearing harm from the Bangladesh authorities on account of her membership and participation in the Chatra Shibir. While the Board is mindful of the fact that it is quite possible for the centrepiece of an Appellant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness, this was not the case with the Appellant’s evidence.”

10.  In her Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application dated 5 November 2018, the applicant relied upon a 20-page submissions of fact, irrelevant materials and grounds, which I shall summarize as follows:

(1)     the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)     the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)     she was confused at the appeal hearing;

(4)     BOR 2 risk was assessed without screening;

(5)     the Adjudicator had misdirected herself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future and had applied the wrong standard of proof;

(6)     the Adjudicator had applied the incorrect standard of proof;

(7)     the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(8)     the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(9)     the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(10)     the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to her case;

(11)     the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(12)     the Adjudicator was wrong in state protection in her country;

(13)     the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

(14)     the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

The Board’s Decision

12.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

13.  I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

17.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court. Ground (4) is simply not true.

18.  Grounds (5) to (9), (11) and (12) are her opinions without any evidence in support of them. They fail.

19.  Ground (10) fails as she did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support her claim.

20.  Ground (13) fails because the applicant had not even raised this issue with the Board.

21.  Ground (14) fails in light of the Court of Appeal’s decision.

22.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

23.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. 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