|
HCAL1135/2017
[2018] HKCFI 1414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1135 of 2017
BETWEEN
|
Doly Sharmin Akther |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
|
Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a Bangladesh national. She is now aged 28 (DOB: 1 January 1990).
2. The Applicant claimed she would be ill-treated or killed by moneylenders in Bangladesh. The moneylenders were leaders of the Jubo League, which was the youth wing of the Awami League (“AL”). They were notorious and engaged in illegal activities. They had good relation with AL leaders, members of the Parliament and influential people. The Applicant's husband had borrowed money from those moneylenders and could not repay them. He later died in 2013.
3. The Applicant said she got married in 2009. Her husband was a drug user and was violent to her. He had borrowed money to buy drugs. The Applicant only knew this in February 2013 when some armed men came to her home to vandalise the properties. They threatened to kill the Applicant’s family if her husband could not repay the debt. The Applicant learnt from her husband that he owed those people 400,000 - 500,000 Bangladesh Takas.
4. The Applicant and her husband reported the matter to the police. However, no one was arrested. The Applicant guessed the culprits had bribed the police.
5. The Applicant thought she could not stay in Bangladesh. She feared she would be tortured by her husband and the debt collectors. She feared she would be killed.
6. In mid-2013, the Applicant saw an advertisement of domestic work. She went to Dhaka to receive training for three months before coming to Hong Kong to work as a domestic helper in late 2013. After she had come here for two months, she learnt her husband was stabbed to death in Bangladesh in August 2013. The Applicant guessed the AL people had killed her husband.
7. The Applicant's employment contract was terminated prematurely in January 2015. She had to leave Hong Kong on or before 5 February 2015 but she overstayed. She was arrested eight months later in October 2015. Then she lodged a non-refoulement claim.
8. The Applicant said her family in Bangladesh told her that the AL people were still looking for her. She believed she would be killed by them or sold to sex traffickers/brothels if she could not repay her husband’s debt.
9. The Applicant thought the Bangladesh authorities would not help her because AL was the ruling party. She claimed internal relocation was not viable since she would not be able to live on her own and the AL people had strong networks to find her.
10. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
11. On 22 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
12. Things happened in this order: –
| Nov 2013 |
The Applicant came to Hong Kong to work as a domestic helper. |
| 2015-1-22 |
The Applicant's employment contract was terminated prematurely. She had to leave Hong Kong on or before 5 February 2015. |
| 2015-2-6 |
The Applicant began overstaying in Hong Kong. |
| 2015-10-29 |
The Applicant was arrested by the police. |
| 2015-11-22 |
The Applicant raised a non-refoulement claim. |
| 2016-4-27 |
The Director held a screening interview with the Applicant. |
| 2016-7-12 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-6-30 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-14 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-24 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-10-31 |
The Applicant appeared before the Board for appeal. |
| 2017-12-7 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-22 |
The Applicant applied for leave for judicial review. |
Respondents
13. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
15. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
16. In the present case, the two Director's decisions were more than three months old by the time the Applicant filed her current application on 22 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 7 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 22 December 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
17. In the Director’s decision dated 12 July 2016, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of her allegations, the officer found the level of the Applicant's claimed risk was low.
18. The officer considered the Applicant's feared situation was a private dispute between her and the moneylenders. There was no state instigation or state acquiescence. The officer did not accept the Bangladesh police refused to assist the Applicant. After balanced consideration of the country-of-origin information (“COI”), the officer was satisfied reasonable state protection and internal relocation were available to the Applicant.
19. The officer did not accept there was any real torture risk, persecution risk and BOR3 risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to those three applicable grounds.
20. Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
21. In the Director’s further decision dated 24 July 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of her rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
22. The Adjudicator interviewed the Applicant. He found the Applicant was uncooperative and her evidence was very brief. He asked the Applicant to explain the inconsistencies in her allegations. The Applicant refused to answer.
23. The Adjudicator was not satisfied that the Applicant was credible. He found the Applicant failed to prove any real risk that warranted non-refoulement protection. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).
Grounds for judicial review
24. In her affirmation, the Applicant complained both the Board and the Director failed to consider extended state acquiescence in her case; failed to consider her psychological strain; failed to understand the real conditions of Bangladesh including human rights violation and abuse of power by AL; misdirected themselves in law; considered irrelevant facts.
25. The Applicant also complained the Director failed to conduct sufficient inquiry of the relevant country-of-origin information (“COI”); failed to consider properly the issue of BOR3 risk and to give reasons.
Court hearing
26. In Form 86, the Applicant requested a hearing. The hearing was scheduled for 24 May 2018. The Applicant was absent. The Bengali interpreter was able to reach her on the phone. The Applicant claimed she had not received the notice of hearing. She said she was not feeling well and could not come to court immediately. The interpreter told the Applicant that she should write to this court within 7 days to justify her absence today with good proof, failing which her application for leave for judicial review would be considered on documents only.
27. Up to today, the court has not received anything from the Applicant to justify her absence on 24 May 2018. I therefore proceed to consider the Applicant's application on consideration of documents only.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]
30. The Applicant referred to the Director's failure to properly consider BOR3 risk and also failed to give reasons. That is not true. In the Director's decision dated 12 July 2016, the immigration officer had given clear reasons for refusing the Applicant's claim with respect to torture risk, persecution risk and BOR3 risk.
31. Many applicants of non-refoulement claim often complained the Director failed to give reasons for the assessment of BOR2 risk. If the Applicant in the present case really meant BOR2 risk rather than BOR3 risk, she was actually not satisfied with the brevity of the Director's further decision dated 24 July 2017 rather than his earlier decision dated 12 July 2016.
32. However, the Director's further decision must be read in conjunction with his earlier decision, where the immigration officer on behalf of the Director had carefully analysed the Applicant's claim. The Applicant failed to submit additional facts regarding the BOR2 risk issue. In such circumstance, the Director was entitled to further consider the Applicant’s claim with respect to BOR2 risk without holding further hearing. The Director by his two decisions had fully dealt with and explained clearly why he refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.
33. The Applicant's other complaints lacked specifics. I have reviewed the Adjudicator’s decision and the Director's decision plus further decision under ‘rigorous examination and anxious scrutiny’. I find none of Applicant's complaints is substantiated.
34. In my judgement, the Adjudicator and the Director had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Adjudicator and the Director. Each had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator’s report and the Director’s reports showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
35. The Applicant's complaints are not reasonably arguable either against the Director or the Board. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 28th day of June 2018
|
(Alan Ngan)
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
|
|
|
|
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)). |
|
Sent to the Applicant on 28/6/2018
Doly Sharmin Akther
Applicant’s ref. no:
Nil. |
|
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 28/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4194/16/7/164/B575
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 543/16 (formerly RBCZ 14201/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
|