MONDAL SUMITRA RANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 927/2019

[2022] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 927 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her.

3.  However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter dated 3 March 2022 to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

4.  The applicant did not respond to the said letter.

5.  Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

7.  The applicant is a national of Bangladesh.  She last entered Hong Kong on 14 June 2014 as a foreign domestic helper.  Her employment contract was terminated prematurely and she was allowed to stay until 19 August 2014. However, she did not depart and had overstayed.  On 6 November 2014, she surrendered to the Immigration Department.  On 19 March 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by (1) her husband and his family for a suspected affair between her and Enamel Hoque (“EH”); (2) EH’s wife and (3) a contract killer called Taj.

8.  According to the applicant, she married her husband in 2008.  In around March 2011 to April 2011, her husband and his family were detained and attacked by people from Bangladesh Nationalist Party (“BNP”).  The BNP members also burnt down their houses, causing death of the applicant’s parental aunt, due to political disputes.  At the same time, there was rumors about a triangle relationship among the applicant, EH and EH’s wife.  EH was affiliated with a member of BNP and thus the applicant’s husband and his family suspected that the applicant was involved in these attacks.  As a result, the applicant was rejected and assaulted several times by her husband and his family.  The applicant had no place to live and decided to work overseas.  While at the training center, she was contacted by Taj who she believed would kill her.  Out of fear, she eventually fled to Hong Kong for protection.  She also mentioned at the second screening interview before the Director that EH’s wife and family had been searching for her.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 30 October 2017 by the Director (the “Director’s Decision”) and paragraphs 12 to 62 of the Board’s Decision described below.   

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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”).

10.  By way of the Director’s Decision, the Director refused the applicant’s claim on the basis that the level of risk of harm upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) the applicant’s evidence lacked credibility [15]; (ii) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm.  Besides, on her own evidence, the alleged injuries failed to attain minimum level of severity [16]; (iii) the claimed enemies had shown no intention to harm or kill her [17]; (iv) the family dispute and the love affair were both private in nature without state involvement [18]; (v) state protection would be available to her [19]-[22]; and (vi) internal relocation was also a viable alternative [23]-[24].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 2 November 2018, the Board conducted an oral hearing for her appeal.

12.  Having considered all the evidence, the Board found that her non-refoulement claim was unsubstantiated.  The Board made the following findings.  It found that the applicant was able to leave the country freely; that, even on her own evidence, the alleged injuries did not attain minimum level of severity; that the purpose of inflicting the pain was not those defined under the Ordinance to satisfy the definition of “torture”; that no evidence showed that her enemies were public officials; that there was also no evidence of state acquiescence [91]-[115]; and that the state protection and internal relocation were both available to the applicant [116]-[156].

13.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal. 

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In her affirmation in support of her application, the applicant set out the following grounds:

(1)  procedural impropriety: failure to make diligent investigation into the receiving state; failure to conduct sufficient inquiry into the relevant country of origin conditions; failure to give sufficient reasons for BOR3 risk assessment; failure to consider that her case was one of the political cases as many BNP members are imprisoned;

(2)  error / misdirection in law: failure to take into account the applicant’s psychological strain and personal threats of being killed.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

19.  The Board had given its reasons in relation to BOR3 risk as set out in paragraph 12 above. The other grounds under 15(1) are bare allegations without any evidence in support. Ground under 15(2) fails because the issue of psychological strain was not brought to the Board’s attention. The Board had already taken into consideration her alleged fear of risk if she were refouled, but rejected her claim. The Board had already given its reasons for its Decision.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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