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HCAL 746/2018
[2020] HKCFI 1623
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.746 OF 2018
BETWEEN
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Akter Shornalee |
Applicant |
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and |
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The Petition Teams (Security Bureau) |
Putative Respondent |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
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 C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against “The Petition Teams (Security Bureau)” of its decision dated 16 April 2018.
2. The applicant, born in 1987, is a national of Bangladesh. She arrived in Hong Kong on 1 November 2013 as a domestic helper and was permitted to remain until 1 November 2015. The contract was prematurely terminated on 8 May 2014. She overstayed after 23 May 2014. On 21 June 2014, she surrendered to the Immigration Department. On 29 September 2014 she lodged a non-refoulement claim and was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [30, 32, 37-45] of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”). Put simply, the claim was based on the fear that, if refouled, she would be harmed or even killed by a party known as AL (in abbreviation) which is the ruling party in the country as well as from AL’s Student Wing known as CL. She was threatened and harmed by a woman called Salma and members of CL in 2013. She feared further harm from them if returned to Bangladesh. She also claimed that AL gangsters had burned down many of her relatives’ houses.
The Director’s Decision
4. By notice of decision dated 21 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that her claim was not substantiated. The decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision. She attended an oral hearing before the Board on 6 March 2018 and gave oral evidence at the hearing.
The Board’s Decision
5. By Decision dated 16 April 2018, the Board rejected her appeal and confirmed the Director’s decision. Her case was rejected on all applicable grounds. The Board gave detailed reasons for rejecting the claimat [88-107] of its decision. In a nutshell, the Board found major inconsistencies and contradictions in the applicant’s account, there was also new claim at the hearing. Having considered the totality of the evidence before it, the Board rejected all the applicant’s factual basis underlying her non-refoulement claim. It found, inter alia, that she was not a member of the political party BNP or JCD as she claimed to belong; she was never harmed, or threatened with harm in her home area; nor was she involved in a dispute with a woman called Salma or with AL or CL; her brother had never been a member of BNP or JCD or ever been arrested and kept in custody; she was not of any adverse interest to AL or the authorities. The Board concluded that she could return to Bangladesh unhindered and she was not at real risk of any of the proscribed types of harm.
Application for leave to apply for judicial review
6. The applicant filed her Form 86 on 27 April 2018 for leave to apply for judicial review of the decision of “The Petition Teams (Security Bureau)” dated 16 April 2018. She did not request an oral hearing. The application is therefore considered on the papers. As it is apparent that the applicant was asking to judicially review the decisions of the Board and the Director, the application will be considered on this basis.
7. In her Form 86, the applicant stated that the Security Bureau gave her an unfair and wrong decision and she would meet threat to her life in her country. In her affirmation in support, the applicant further deposed that she still feared threat to her life by her enemies in her country. She said she was unable to give any supporting document at her last interview, but she would try her best to take it as soon as possible.
Discussion
8. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
9. The Director’s decision has been superseded by the Board’s decision and hence not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, the Court will only focus on the latter’s decision.
10. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it rejected the accounts of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, it concluded that she was not at real risk of harm of any of the proscribed types of harm. As mentioned, evaluation of evidence and the assessment of risk are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.
11. By a letter dated 11 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make. In response, the applicant sent a letter to Court reporting that her address remained the same and attached to it with the decisions of the Board and the Director.
12. The grounds raised by the applicant are just general and vague assertions, without any particulars as to how the Board was wrong, unfair or unreasonable in the public law sense.
13. As to the claim that she was unable to give her supporting document to the Board at the hearing, no reasons were given for her failure. She had plenty of time to obtain the documents before the hearing. Even in her affirmation in support and her last letter sent to the Court on 15 May 2020, she still failed to identify what the documents are and when she can submit them. There is no merit in this ground.
14. In the present case, the Board with the benefits of hearing the applicant of her oral evidence rejected her non-refoulement claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision. I do not find any reasonably arguable basis to challenge the finding of the Board.
15. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
Conclusion
16. For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review. I accordingly refuse to grant leave to apply for judicial review.
Dated 17th day of July 2020
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(Chunkin Leung) |
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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 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 17 July 2020
Akter Shornalee
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 17 July 2020
The Petition Teams (Security Bureau)
Putative Respondent’s ref. no.:
QA T/C 2624/17 (formerly RBCZ 10539/15)
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Interested Party’s ref. no.:
USM 9393/17/12/60/B1075
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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