AFROZ MST SUMI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2279/2018

[2022] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2279 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicants’ application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 September 2018.  The Board had not made any decision bearing that date in respect of the Applicants, but had made one in respect of them dated 28 September 2018 (the “Decision”). In their supporting affirmation dated 19 October 2018, the 1^st Applicant annexed a copy of that Decision.  Hence, it is manifestly clear that the Applicants made a typographical error on the Form 86 and the subject matter of this application is that Decision.  Leave was therefore granted to the Applicants to amend the date of the decision in respect of which leave to apply for judicial review was sought.

2.  The 1^st Applicant is a national of Bangladesh, now aged 35.   She last entered Hong Kong on 30 November 2015 to work as a foreign domestic helper.  Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period.  She overstayed and surrendered to the authorities on 12 January 2016.    On 31 March 2016, she lodged a claim for non-refoulement protection.  She gave birth to her daughter, the 2^nd Applicant, in Hong Kong on 7 November 2016.  She lodged a claim for non-refoulement protection in respect of the 2^nd Applicant on 26 January 2017.

3.  In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 25 September 2017, the Director rejected their claims under all four applicable grounds.

4.  They appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 28 September 2018, the Board dismissed their appeal.  On 19 October 2018, they applied for leave to apply for judicial review of the Decision of the Board.

5.  As the 2^nd Applicant is a minor, the 1^st Applicant who represented her had been advised by letter of this Court dated 31 December 2021 to seek legal representation whether by the Duty Lawyer Service or private solicitors.  Five and half months have since lapsed.  They did not respond.  No memorandum of such application for legal aid had been received from the Director of Legal Aid.  The Applicants had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicants’ case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1^st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, they claimed that they would be at risk of harm by the Bangladeshi police loyal to the Awami League (“AL”) for having participated in a protest against AL and by and the 1^st Applicant’s three distant uncles for having defaulted in their loans.

7.  The 1^st Applicant was born in District Thakurgaon of Bangladesh and had received 10 years of education up to High School level.  She had been unemployed since her graduation.  She has one daughter with her ex-husband who was being taken care of by her mother in Bangladesh and another daughter in Hong Kong, namely the 2^nd Applicant.  She has lost contact with her ex-husband after their divorce.

8.  The 1^st Applicant joined the Bangladesh Nationalist Party (“BNP”) in 2004 as an ordinary member.  She attended rallies, strikes and meetings held at the district of Thakurgaon.  She took part in a joint protest with Bangladesh Jamaat-e-Islami in February 2013 against the death sentence passed on the Jamaat-e-Islami leader.  She was involved in setting fire to buses and throwing stones at vehicles.  When the police arrived, five adults and a young boy were shot down by the police.  The 1^st Applicant fled the scene without sustaining any injury.

9.  The police arrived at her home to look for her that night.  As she had fled her village before the police arrived and avoided arrest.  She stayed with her paternal uncle in Tangail for about two years.  During that time the police also visited her uncle’s home looking for her but she was not there.  The police told her uncle that she had been identified as a participant in the protest and there would be consequences for sheltering her but did not say what action would be taken against her.

10.  The 1^st Applicant felt she could no longer stay with her uncle and moved to stay with her maternal grandfather instead.  She stayed there for about 1 to 2 weeks.  Nothing eventful happened, though she heard that the police had come the area every day and detained members of BNP and Jamaat-e-Islami.

11.  The 1^st Applicant borrowed BDT 200,000 from three distant uncles who lived in her maternal grandfather’s village.  They charged her a monthly interest of 10% and she was required to settle the loan in six months.  They told her that she would be handed over to the police if she failed to repay the loan.  She used the money to pay an employment agency in Bogra.  After staying there for three months’ training, she came to work in Hong Kong.  Unfortunately, she was diagnosed with hepatitis B and her employer dismissed her instantly.

The finding of the Board

12.  The Board considered the number of inconsistencies and contradictions in the 1^st Applicant’s evidence was sufficiently serious as to undermine the reliability of her story[5].  For example, in her written signification, she alleged that her uncles “will likely kill [her] when [she goes] back to the country”.  But in the NCF she merely said that the uncles would hand her over to the police if she could not repay the loan. During the screening interview, she said that her uncles would harm her if they could get a hold of her.  In her NCF, the 1^st Applicant alleged that she was a supporter of BNP, but during the screening interview, she said she was a member.

13.  The Board found that the 1^st Applicant had adduced no, or no reliable evidence to show[6]:

(1)  that she was a BNP member, rather than a supporter;

(2)  that she was a target of AL party, rather than the police was randomly trying to break up the protest;

(3)  that the police or government wished to send her to jail;      

(4)  that she is a wanted person in Bangladesh; and

(5)  that the state of Bangladesh was unwilling to help her for a reason under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

14.  On her evidence, the 1^st Applicant did not know the purpose behind the police visits to her and her uncle’s home.  She made no enquiries from the police but claimed that she was in fear of being killed or shot dead by the police.  She must be referring to the police shooting during the protest and the subsequent police visits to her and her uncle’s home looking for her.  Her concern was that the police were loyal to AL and she was a target of AL.  On the basis of credible Country of Origin Information (“COI”), the Board found that the Bangladesh police does not appear to be so intrinsically tied to AL[7].  The 1^st Applicant admitted her criminal participation in the protest.  As the Board rightly observed, persons fleeing from punishment will not normally be regarded as refugees, as a refugee is a victim of injustice, not a fugitive from justice[8].  Hence, the Board found that the 1^st Applicant’s belief that the authorities wished to detain, harm or kill her for what she did during the protest was pure speculation on her part.  It was not based on her own experience but on hearsay evidence from her sister.  There was also nothing to suggest what the police would do to her if her uncles handed her over to them.

15.  Applying the law applicable to non-refoulement protection under the USM to the above finding of fact, the Board found the Applicant had failed to prove the factual basis to support her claim for protection under any of the four applicable grounds under the USM. 

16.  In respect of Persecution Risk ground, the Board found the Applicant had never been ill-treated by her uncles because of the loan or by the police in connection with her protest.  Even if she had been ill-treated, it was not for a reason under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.  On the basis of credible COI, the Board found that the Bangladesh police did not appear to be so intrinsically tied to AL.  She could have made attempts to deal with the enquiries from the police and remedy the situation.  The Board also found that state protection would be available to protect her from harm from her uncles or from abuses by the police[9].

17.  In respect of BOR 2 Risk ground, the Board held that BOR 2(2) to (6) risk is not engaged as it is not the 1^st Applicant’s case that she had committed any criminal offence for which she would face capital punishment.  She has also not adduced any evidence that she would otherwise be arbitrarily deprived of her life as to invoke BOR 2(1) risk.

18.  To prove BOR 3 Risk ground, the 1^st Applicant must establish that there are “substantial grounds for believing” or “strong grounds” for believing that if removed from Hong Kong she would face a “real risk” of being subjected to torture, cruel, inhuman or degrading treatment or punishment.  On the evidence, the 1^st Applicant has not been subjected to such ill-treatment.  On that basis the Board found she had failed to substantiate that she would face a genuine risk of being subjected to ill-treatment under BOR 3 Risk.

19.  As for Torture Risk ground, the Board was not satisfied on the evidence that AL party or Bangladeshi government has specifically targeted the 1^st Applicant as evidenced by the fact that she was able to use her Bangladesh passport to leave the country through official immigration channels.  The Board also found that the ill-treatment she received or likely to receive upon her return failed to meet the elements of torture as defined in section 37U of the Immigration Ordinance as there was no issue of state acquiescence or failure of due diligence on the part of the Bangladeshi government.

20.  On the basis of credible COI, the Board was also satisfied that state protection is available. It was only the 1^st Applicant’s choice not to seek police assistance. 

21.  In the further alternative, even if any of the risks were real, the Board found that internal relocation is a viable option to avoid the risk of harm.

22.  For the above reasons, the Board confirmed the decision of the Director in the Notice and dismissed her appeal.

The legal principles applicable to judicial review

23.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[10]. Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court could only focus its attention on possible criticisms of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

24.  The Applicant did not put forward any grounds in her Form 86 or her supporting affirmation.  She had been invited by the Court via its letter dated 20 October 2020 to advise the Court of her first language, contact number and to file submissions.  She did not respond.  The letter was sent by post to her address as stated in her Form 86 dated 19 October 2018.  It has not been returned through the post.  She never informed the court of any change of address.  There is nothing to suggest that she had not received the letter or had moved.  She was deemed to have abandoned her right to make submissions. 

Discussion

25.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her and the 2^nd Applicant to return to their home country, which, in effect, is a challenge of the Board’s finding of fact that they would not face any real harm or risk if returned to Pakistan.  

26.  The 2^nd Applicant was born in Hong Kong, now five years of age.  She had not been subjected to any ill-treatment as that allegedly suffered by the 1^st Applicant.  The 1^st Applicant had not adduced any evidence or advanced any argument that the 2^nd Applicant would face any real risk of harm other than collateral risk for being her daughter.  Hence, the 2^nd Applicant’s claim is hinged on the 1^st Applicant’s. 

27.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  Because of significant inconsistencies and contradictions in her evidence, the Board found the 1^st Applicant incredible and that she failed to prove the factual basis of their claim for protection.  In essence, the Board found that the risk of harm she and the 2^nd Applicant would face upon their return to Pakistan is low.  It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicants had failed to discharge their burden of proving their fears and risks.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

28.  For the above reasons, leave to apply for judicial review was refused.

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