DAS MOLY RANI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL932/2018

[2019] HKCFI 2480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 932 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.  The applicant applied for leave to apply for judicial review of the Adjudicator’s Decision Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 8 November 2018.  However, the applicant was absent on that day.

3.  By an Order dated 8 November 2018, this Court dismissed her application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time. Pursuant to Order 59, rule 2B(1) Rules of the High Court (“RHC”), the applicant filed a summons dated 29 November 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  On 4 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 19 December 2018 and the applicant should file an affirmation to state her reasons for her absence on 8 November 2018 within 7 days from the date of the direction.

6.  The applicant did not file her affirmation as directed. At the hearing, this Court allowed her to make her affirmation in the court and she did so. On oath, she said that she was ill on 8 November 2018. But she did not go to see the doctor. She had taken some medicine. She did not have a medical certificate to prove that she was not feeling well.

7.  I am satisfied with her explanation for her absence on 8 November 2018.

8.  Under Order 32, rule 6 of RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 8 November 2018 dismissing her application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave to apply for judicial review of the Board’s Decision.

The applicant

10.  The applicant came from Bangladesh and she entered Hong Kong as a domestic helper in 2014. Her employment was prematurely terminated on 2 March 2015 and she was required to depart from Hong Kong by 16 March 2015. She overstayed without permission of the Director. On 22 October 2015, the applicant made her application for non‑refoulement to the Director.

11.  The applicant claimed that she feared that she would be harmed or killed by Ananda Chandra Das (“Ananda”) who was in a prominent position in the Awami League (“AL”). She claimed that she was raped by Ananda and she had filed a criminal case in relation to this matter. She claimed that Ananda wished to harm her in order to prevent her from pursuing the case. She also claimed that she had been falsely accused by her former employer of stealing money, and she would be pursued and harmed in relation to this matter if she returned to Bangladesh.

12.  In her statement to the Director and the Board, she said that Ananda was her former boyfriend. However, she discovered that he had relationship with another woman. He separated from him. On one occasion, he took her to a restaurant and duped her with a drink. He raped her six or seven times. He promised to marry her. But he did not keep his promise. She was pregnant. She tried to commit suicide by taking drug. She miscarried as a result. She reported the matter to the police. They did not take action. She disclosed the case to the media and took the matter to court. The court passed a short sentence on him. On one occasion, she went out with her brother. They met Ananda on the street. Her brother and Ananda fought together. She saw him stab her brother with a knife. Her brother died as result. Ananda threatened her not to disclose that he killed her brother or he would kill her family. Ananda also asked his sister-in-law to fabricate a case that she had misappropriate her former employer’s money. She felt unsafe. She had training as a domestic helper and came to Hong Kong. The above incidents took place in 2013 and 2014. She departed Bangladesh for Hong Kong on 28 October 2014.

The Director’s Decision

13.  The Director considered her application for non-refoulement by reference to the risks below:

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.     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”).

14.  By Notice of Decision dated 20 December 2016 (“the Director’s Decision”), the Director refused the applicant’s application for non-refoulement protection for the reason that her claim was not substantiated.

The Board’s Decision

15.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 18 January 2018.

16.  By Decision dated 29 March 2018 (“the Board’s Decision”), the Board rejected the applicant’s appeal and confirmed the Director’s Decision.

17.  From the Board’s Decision, the Adjudicator had put the applicant’s evidence to the Immigration officer into acid test. Having considered the evidence, the Adjudicator said in the Board’s Decision:

“86. I have found above that various aspects of the Appellant’s claims are not credible and indicative of the fact that they have been fabricated….

88. … I do not accept that the Appellant has been charged with embezzlement, or that persons from the UNDP who are aligned with Ananda have fabricated a case against her in relation to this matter.

89. … I am drawn to the conclusion that the Appellant has either obtained the documents through corruption, or they are forged, or fraudulent or they relate to another person by the name which the Appellant has claimed is her alias, but provided no evidence to support this claim….In all the circumstances, I consider it sufficient to find that the documents she has provided in relation to the rape, court case and allegations of embezzlement are not genuine and I do not accept they support her claim in relation to Ananda or UNDP.

90.    Given these findings, I am not satisfied that there are substantial or strong grounds or a real chance or a real risk that Ananda or his associates will attempt to pursue the Appellant upon her return to Bangladesh. I do not accept therefore that the Appellant will suffer harm amounting to torture, CIDTP, a real risk to her life or persecution upon her return to Bangladesh as a result of these issues or as a result of any other factors. …”

Application for leave for judicial review

18.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, by Form no. 86 dated 25 May 2018, the applicant applied for leave for judicial review of the Adjudicator’s Decision. In her affirmation in support of this application, she set out the grounds below:

(1)     the Hearing Bundle was only given to her shortly before the appeal hearing, so she did not have sufficient time to prepare for it;

(2)     the Hearing Bundle was in English without translation and she was unable to find an interpreter;

(3)     she was confused at the appeal hearing;

(4)     the Board had relied upon outdated and hearsay Country of Origin Information.

DISCUSSION

19.  It is obvious that the Board turned down her appeal because the Adjudicator did not believe her story. Therefore, she has no factual basis in support of her claim.

20.  The applicant appeared before me and said that she did not understand the Hearing Bundle, but she did not seek any assistance from the Director, the Duty Lawyer Scheme or the Board as she was advised by her husband here that all she had to do was to tell the truth to the Adjudicator of the Board. She did so. She had no problem with the questions from the Adjudicator. She had no complaint against the Adjudicator or the interpreter. She just did not understand why the Director and the Adjudicator did not believe her.

21.  The above shows that the applicant was not confused at the appeal hearing though she did not understand the contents of the Hearing Bundle. The Hearing Bundle contains the contents of her evidence before the immigration officer. She elected not to seek help from any source. She was unable to identify the problem because of the Hearing Bundle. She was not confused at the appeal hearing. The Court of Appeal in Re Khan MD Omar, [2019] HKCA 803, 19 July 2019 at paragraph 18 held that lack of language assistance is not a ground for judicial review. Therefore, grounds (1), (2) and (3) fail.

22.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the immigration officer. The Director and the Adjudicator had considered the relevant reports relating to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The applicant has not set out why she considers that those information is unreliable.

CONSCLUSION

23.  Having considered all of the grounds raised by the applicant, I find that the applicant has failed to raise any valid ground to challenge the Adjudicator’s Decision and her application for judicial review has no reasonable prospect of success. As such, this Court declines to grant leave to the applicant to apply for 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