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HCAL2575/2018
[2019] HKCFI 1626
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2575 of 2018
BETWEEN
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Akter Tania |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the decision of Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.
The applicant
2. The applicant is a Bangladeshi national. She had come to Hong Kong for twice and raised a non-refoulement claim.
3. In support of her claim, she claimed that if she returned to Bangladesh, she would be harmed or killed by her husband.
4. In her statements given to the Director and the Board, she said that she was tortured by her first husband back in Bangladesh because her father was unable to pay him the dowry. When her father paid him money, he asked for more. She was able to earn money in Bangladesh, but she could not have savings. So, she came to Hong Kong where she married another Bangladeshi, who was sentenced to prison for dangerous drug charge.
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”).
6. By Notice of Decision dated 18 May 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 13 September 2018.
8. By Decision dated 5 November 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s case and came to the conclusion that she would not be at risk of any harm if she returned to Bangladesh and there was not a real risk or real chance that she would face any harm if refouled as she claimed. She came to this conclusion having considered the following matters:
“…the significant inconsistences in the evidence, the lack of documentary evidence … and the delay in applying for non-refoulement protection all lead me to find that the Appellant is not telling the truth about her claims…. [89] …I consider that the inconsistencies are significant and together with the Appellant’s failure to report the attacks on her to the police and her failure to provide any documents in support of her claims, including medical evidence…reflect adversely on the Appellant’s credibility and the reliability of her evidence. [92]”
10. The Board also considered that internal relocation is an option open to her [94].
Application for leave to apply for judicial review
11. In her Form 86 dated 16 November 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.
12. In her affirmation in support of her application dated 16 November 2018, the applicant relied upon the following grounds:
(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) the Adjudicator had relied upon hearsay information and outdated material in relation to COI.
DISCUSSION
The Board’s Decision
13. 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 said that her lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.
14. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.
15. It is quite obvious that 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.
16. Grounds (1) to (3) above are inconsistent with what she said in court. Ground (4) is her opinion without any evidence in support of it.
17. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
18. 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.
Dated the 26th day of June 2019
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(Henry Ng)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 26/6/2019
Akter Tania
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11749/18/5/334/B1269
The Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1335/18 (formerly RBCZ 10066/18)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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