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HCAL832/2018
[2019] HKCFI 311
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 of 2018
BETWEEN
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Khatun Rozina |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the Torture Claims Appeal Board (“the Board”), with the Director of Immigration (“the Director”) as the interested party.
The applicant
2. The applicant is a national of Bangladesh. She came to Hong Kong as a domestic helper on 29 July 2013 on permission of the Director for two years. Her employment was terminated prematurely on 30 November 2013. She overstayed.
3. On 7 March 2016, she was arrested of overstaying illegally. She was punished by imprisonment of two months.
4. On 17 April 2016, she lodged a non-refoulement claim. She was released on recognizance. On 24 November 2016, she was arrested for breach of condition of stay, for which she was sentenced to 3 months’ imprisonment.
The grounds of non-refoulement protection
5. She relied upon the ground that if she were repatriated to Bangladesh, she would be harmed or killed by certain members of the Awami League (“AL”) because she was a member of the Jamaate Islami Party and was physically and sexually assaulted by certain AL members. She also claimed that her father was murdered by AL members.
6. In her statements given to the Director and the Board, she said that she and her father was attacked at home in 2011; that she was raped by 5 to 7 people as she was dragged into a bedroom by 2 or 3 men and her neighbour came to rescue her.
The Director’s Decision
7. The Director had assessed the applicant’s application on the following applicable grounds:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. 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
d. 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 under RC”).
8. By Notice of Decision dated 27 January 2017 (“the Director’s Decision”), the Director rejected her application for non-refoulement. The Director had set out the reasons for rejecting her application in his Decision.
9. The applicant appealed to the Board.
The Board’s Decision
10. The applicant attended a hearing before the Adjudicator on 14 March 2018.
11. The Adjudicator had re-considered her case. She had also told the Adjudicator that she had told everything concerning her application for non-refoulement to the Director and that she had nothing to add.[1] Nevertheless, the Adjudicator went through her story that she had given to the Director in the screening process.
12. By Decision dated 2 May 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.
13. Having considered her evidence, the Adjudicator in his Decision under the heading of “Assessment of Credibility of the Petitioner” (§§70-74”), set out the reasons why he disbelieved the applicant’s story.
14. The Adjudicator went through the risks above and concluded that the applicant had failed to make out her claim under any of the risks.
Application for leave for judicial review
15. By Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.
16. In her supporting affirmation, she set out her grounds:
(1) she was given the hearing bundle 6 days before the appeal hearing;
(2) she was not given sufficient time to prepare her case;
(3) the contents of the bundle were in English and she was not given assistance to understand the contents. therefore, she was confused at the hearing; and
(4) the Board had relied upon Country of Origin Information (“COI”), which is not officially recognized, is outdated or hearsay.
DISCUSSION
17. She did not raised grounds (1), (2) and (3) with the Board.
18. The applicant could seek assistance from available sources such as the Director’s office, the Legal Aid Department, the City District Office or the Board. She did not attempt to do so.
19. At paragraph 13 of the Board’s Decision, the Adjudicator had said that he had explained the procedures of the hearing to the applicant through the interpreter. She confirmed what she said to the Director in support of her claim for non-refoulement were true and correct and she had nothing to add to her evidence. She also said that she had answered all the questions put to her by the Adjudicator honestly.
20. All these show that she was not confused at the hearing. She was not prejudiced by the hearing bundle either.
21. Grounds (1) to (3) fail.
22. As to ground (4), that the Board had relied on the source of news which was not officially recognized, outdated or it is hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer. The Adjudicator had considered the relevant reports under the COIs. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. The applicant has not set out why she considers that the information is unreliable.
CONCLUSION
23. For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I decline to grant leave for her judicial review. Accordingly, I dismiss her application.
Dated the 8th day of February 2019
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(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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 8/2/2019
Khatun Rozina
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 8/2/2019
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 6140/17/2/139/B753
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1460/16 (formerly RBCZ 11688/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] §13 of the Board’s Decision
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