ARA MOST ANJUMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 527/2018

[2019] HKCFI 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 527 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 the Applicant being absent in open court;

Leave be granted to the applicant to judicially review the Torture Claims Appeal Board’s decision dated 1 February 2018 on the ground that the Board had failed to give any or sufficient reason for dismissing the applicant’s appeal.

Observations for the Applicant:

1.  The applicant is a 36-year-old national of Bangladesh who arrived in Hong Kong on 19 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 August 2015 or within two weeks of its early termination.  On 13 December 2013 her employment was prematurely terminated but she did not depart and instead overstayed until she was arrested by police on 21 January 2014.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband and/or by the police for her failure to disclose her husband’s whereabouts for investigation over the collapse of a building.  She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Village Ramnagara, District Dinajpur, Bangladesh. After leaving school she married her husband and together they ran a garment shop in Dhaka.

3.  Their shop was next to a commercial plaza owned by her husband’s friend Rana with political connections.  The plaza was occupied by many other shops but as it became old and required structural repair and renovation, Rana therefore asked the applicant’s husband to get workers to carry out its renovation, but when the applicant noticed serious deteriorations to the foundation of the plaza and suggested to her husband that he should first ask all the occupants of the building to leave for their safety before carrying out its renovation, her husband told her to mind her own business which led to an argument during which her husband slapped her and beat her with a wooden stick.

4.  After the assault the applicant decided to leave her husband by applying for work as a foreign domestic worker in Hong Kong, but while she was undergoing training for the job, her husband suspected that she might be leaving him and one day together with his friends held her inside their home and beat her during which she was cut by a knife and was burnt with a hot iron rod in her body.

5.  Later on 24 April 2013 the plaza collapsed killing many of its occupants, and her husband then ran away to hide form the police’s investigation, and when the police were unable to find him, they came to the applicant to interrogate her for her husband’s whereabouts during which she was detained overnight at the police station, but on the following morning she managed to escape and went into hiding at her friend’s place in Ahmedpur until August 2013 when she departed for Hong Kong to work as a foreign domestic helper, and when her employment contract was prematurely terminated, she overstayed in Hong Kong and raised her non-refoulement claim, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 February 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.  By a Notice of Decision dated 30 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband and/or the police to the applicant upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from her husband and that she was not pursued by the police given that she was able to leave Bangladesh without any problem, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from her home district in large cities such as Chittagong where it would be difficult if not impossible for her perceived enemies to locate her.

8.  By a Notice of Further Decision dated 7 July 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 July 2016, but for which she failed to attend an oral hearing scheduled on 16 November 2017 without any explanation, and the Board proceeded to deal with her appeal in her absence and on paper.  On 1 February 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  On 29 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not delivering its decision to her within reasonable period and in failing to give its reasons for refusing her appeal;

(2)  that the Board’s decision was unfair; and

(3)  that the Board failed to inform her that she could complain of not being given legal representation or assistance for her appeal.

11.  I shall deal with her last ground first, in which she complains of not being given legal representation or assistance in her appeal before the Board is not reasonably arguable as the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

12.  The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to complete and file her notice of appeal to the Board without difficulty.  I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

13.  As for Grounds (1) and (2) in which the applicant complains that the Board failed to give its reason for refusing her appeal within reasonable time and that it was unfair, they can be considered together as it seems to me relevant for her to ask what reasons the Board has in fact given for refusing her appeal, for which the Board explained in its decision as follows:

“ 66.  As indicated above, after considering the Appellant’s claims as contained in all the material contained in the hearing bundle I decided that the matter could not be dealt with by a paper review, but required an oral hearing. In such circumstances it was for the Appellant to appear at such a hearing and prove her case to the required standard.

67.  The Appellant did not appear at the hearing. She has given no evidence to support what she has written in her NCF, and I am unable therefore to decide on the credibility of her case.

68.  It follows that I am unable to estimate what risks, if any, she faces if she is refouled to the Bangladesh, or to decide whether or not she is entitled to non-refoulement under the provisions mentioned above.

69.  Her claims therefore must be dismissed.”

14.  In Re Hidayah [2018] HKCA 595, where the applicant appealed against the Court’s decision for refusing her leave to apply for judicial review of the Board’s decision to dismiss her claim for similar reasons, the Court of Appeal, in allowing her appeal and granting her leave for judicial review, held that the Board had failed to give or to give sufficient reasons for its decision and stated:

“ 15.  The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16.  We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

15.  In the present case, as noted above the Board similarly decided the appeal against the applicant because it claimed to be unable to determine her credibility due to her failure to attend the hearing, and therefore it was unable to estimate what risk if any she faces if refouled to Bangladesh or whether she would be entitled to non-refoulement protection, despite having considered the documents in the hearing bundle supplied by the Director (see [37] of the Board’s decision), but no elaboration was made as to why it was unable to determine the credibility of the applicant’s claim based on the materials and information before it, and that in the absence of any adverse finding against the applicant’s credibility, it seems to me no analysis or assessment had been made in the decision on the basis that her case was plausible.

16.  In the premises and for these reasons I am of the view that it is reasonably arguable that the Board had failed to give any or sufficient reason for dismissing the applicant’s appeal, and accordingly I grant leave to the applicant to judicially review the Board’s decision on this ground.

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