SULTANA RAZIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1542/2019

[2023] HKCFI 3065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1542 of 2019

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 30 May 2019 (the “2019 Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 27 April 2017 (the “Further Notice”) refusing her application for non-refoulement protection under BOR 2 Risk[1] ground.

2.  The Applicant is a Bangladeshi national.  She entered Hong Kong on 29 November 2013 to work as a foreign domestic helper.  Her contract of employment was prematurely terminated but she did not leave within the prescribed period.  She overstayed and was arrested on 7 July 2014.  On 12 July 2014, she raised a non-refoulement claim. 

3.  In due course, her non-refoulement claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4].  Her claim was dismissed by the Director by his notice of decision dated 16 March 2016 (the “Notice”).  Her appeal against that Notice (the “2017 Appeal”) was dismissed by the Board’s decision on 13 March 2017.

4.  On 10 April 2017, the Director invited the Applicant to submit additional information, if any on or before 24 April 2017, which she considered relevant to her claims on all applicable grounds, specifically including BOR 2 Risk ground.  The Applicant did not respond.  Then, the Director issued the Further Notice rejecting her claim under BOR 2 Risk ground.

5.  The Applicant appealed the Further Notice (the “2019 Appeal”).  Her appeal was dismissed by the 2019 Decision. She now seeks leave to apply for judicial review of that Decision. 

6.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the 2019 Decision, the Further Notice, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.    

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance.  In gist, she claims she is in fear of being harmed or killed by Shahid the leader of Awami League (“AL”), a rival and ruling political party in her home district, for being a member of Bangladesh Nationalist Party (“BNP”) and for her support for BNP.

8.  The Applicant, now aged 35, was born in Bagerhat District, Bangladesh.  She finished education up to primary 5.  She claimed that her father was a local leader of BNP in her home village.  She was also a member of BNP.  She, her mother and sister helped in the activities of BNP.  Her neighbour, Shahid, was a leader of AL and an influential person in her home village. 

9.  In February 2011, the Applicant helped hanging posters for BNP.  Shahid and his followers tore down the posters and threatened to abduct her and rape her, if she ever placed BNP posters again.  The incident happened eight to ten times in 2011.  In November 2011, the Applicant told her father about the incidents.  Then, her father sent her to live in her maternal grandmother’s home in Pagla.

10.  In December 2011, some AL members told the Applicant’s maternal uncle that she must return to her home village or her uncle would be harmed.  Then the Applicant went back to her home. After she returned, in January 2012, some people (believed to be AL supporters) threw stones and bricks at her home for about 10 minutes.  She made a report to the police but the police never gave her any updates about their investigation.

11.  On the following day, the Applicant’s father was abducted.  Through the intervention of some local BNP leaders, her father was released the next morning.  The Applicant learnt from BNP leaders that the abduction was carried out by AL supporters because of her father’s political affiliations.  AL supporters continued throwing stones and bricks at her home the next three nights.

12.  For fear of her safety, the Applicant moved to stay with her paternal aunt in the Barisal in January 2012.  After attending a training course in Dhaka, she took up employment to work as a foreign domestic helper in Hong Kong in June 2013. 

13.  After her contract was prematurely terminated, the Applicant does not want to return to Bangladesh because she is afraid of being harmed or killed by Shahid and his followers.  She claims that as AL had close connections with the police, the police would not protect her. She also believes she could not relocate to other cities in Bangladesh as AL would be able to locate her through its members throughout Bangladesh.  

The finding of the Board

14.  At the hearing of the 2019 Appeal, the Applicant told the Board that she learned from her neighbour that her father had been killed by Shahid about 16 days after the hearing of the 2017 Appeal (ie on or about 24 February 2017).  However, she could offer no reasonable explanation why she did not tell the Director about his death when the Director asked for additional information in his letter dated 10 April 2017 in relation to the BOR 2 Claim.  Therefore, the Board did not place any weight on this piece of evidence.

15.  The Board noted there were inconsistencies between the evidence she gave in the 2017 Appeal and 2019 Appeal.  She claimed for the first time in the 2019 Appeal that she was attacked by AL supporters in 2009.  But she was unable to say when or what had happened during the incident.  Nor was she able to give a credible explanation why she had made no mention of these incidents in her NCF, at the screening interview or at the hearing of the 2017 Appeal.  She also claimed for the first time in the 2019 Appeal that Shahid visited her to threaten her while she was in Baristal.  Again, she was unable to say when or what had happened during the incident.  Nor was she able to give a credible explanation why she had made no mention of these incidents in her NCF and at the screening interview.  The Board also found it inherently implausible that Shahid would have travelled five hours to Baristal to intimidate a rank and file member of BNP.  The Board did not accept these assertions as credible.

16.  The Applicant also claimed, for the first time, that Shahid was a local member of parliament.  But the Board noted that this assertion did not tally with the official record of the Bangladesh Parliament.

17.  The Board accepted that the Applicant is a member and supporter of BNP and has been so since 2008. However, given her ignorance of the information about the party, what it stood for and its policies, the Board found there is no credible evidence that her involvement with BNP extended much beyond sticking up party posters in her village on her father’s instructions.

18.  The extent of the ill-treatment claimed by the Applicant is abduction and rape on eight to ten occasions, but she did not appear to have given the threats much credence as she continued to stick up posters in her village for nine months after the threats were made and did not even mention them to her father until nine months afterwards.  On her evidence, the threats were never carried out and she suffered no physical harm at all.

19.  There is no indication that the Bangladeshi police or the authorities were involved or acquiesced in the conduct of Shahid and his followers towards the Applicant or had any adverse interest in the Applicant.

20.  In conclusion, the Board found there is no credible evidence that the Applicant’s life was at real risk before she left Bangladesh and there is no evidence to suggest that her life would be at real risk if she was refouled.  Hence, the Board found she had failed to establish the factual basis in support of her claim under BOR 2 Risk ground.

The legal principles applicable to judicial review

21.  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[5].  

Grounds for judicial review

22.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she reiterated that what she said in her statement are true and annexed a copy of the 2019 Notice and 2019 Decision.  In effect, she is seeking to challenge the Board’s finding of fact that her life would not be at real risk if she were refouled to Bangladesh.  For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, 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. 

Discussion and conclusion

23.  Having rigorously examined the 2019 Notice, the 2019 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under BOR 2 Risk ground, the burden of proof and standard of proof; correctly identified the issues; and observed a very high standard of fairness.  The Board found the Applicant incredible and rejected the core of her claim.  These are finding of facts and of the law.  The Board gave full reasons for its findings.  Insofar as it is a finding of fact, it is exclusively within the realm 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.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the Applicant’s application for leave to apply for judicial review is 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

[1] 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] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] [2018] HKCA 524 at [14(1)]