|
HCAL 471/2019
[2023] HKCFI 1124
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 471 of 2019
|
BETWEEN
|
| |
Khatun Mst Asma |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-Refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
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 To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 19 February 2019 for leave to apply for judicial review (the “leave application”) of an unidentified decision dated 11 February 2019 by an unidentified body. In her supporting affirmation, she enclosed a copy of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 11 February 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration in his Notice of Decision dated 3 November 2017 (the “Notice”) refusing her application for non-refoulement protection. Hence, it is obvious that her intention is to seek judicial review of the Decision of the Board refusing her appeal against the decision of the Director in his Notice. Accordingly, leave is granted to amend the Form 86 by making the Board the proposed respondent, the Director the interested party and the Decision the decision in respect of which relief is sought.
2. The Applicant is a Bangladeshi national, now aged 38. She first entered Hong Kong on 18 December 2013 to work as a foreign domestic helper. She overstayed after her latest employment contract was prematurely terminated. She was arrested on 15 January 2015 for overstaying. On 15 February 2015, she raised a non-refoulement claim.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice, the Director rejected her claims under all four applicable grounds. Her appeal against the Notice was dismissed by the Decision of the Board. She now seeks leave to apply for judicial review of the Board’s Decision. She did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that her leave application may be justly determined on paper without an oral hearing.
The Applicant’s case
4. 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, the record of screening interview in the presence of her lawyer, and her evidence before the Board. In her NCF, she claimed that she will be harmed or killed by people belonging to the Awami League (“AL”) political party. During the screening interview, she made an additional claim of fear of harm from her ex-husband whom she alleged was a drug addict and a general secretary of the AL. Before the Board, she made yet another new claim based on a property dispute.
5. The Applicant was born in Bangladesh. Her parents are now deceased. She has five brothers now living in Bangladesh. She is divorced and has a son who is currently living with his paternal grandparents in Bangladesh. She has completed 12 years of education and worked as a field worker before taking up employment as a domestic helper in Hong Kong.
6. She claimed that her father and brothers were associated with the Bangladesh Nationalist Party (“BNP”) and her father was a president of the BNP. They attended rallies organised by the BNP. The Applicant was a supporter of the BNP but was not involved in any political activities. Due to the rivalry between the BNP and AL, her father and brothers were often assaulted in the street whenever AL members saw them. Sometimes, they were arrested and detained for false charges.
7. She said that after her divorce in 2013, she and her son lived with her mother. She claimed that one day in August 2013, five AL men forced into her home and attacked her. They pulled her hair and slapped her. The assailants threatened to kill her and her mother if they did not leave their home. The Applicant sustained injuries and attended a private doctor in her village for treatment. Her mother reported this matter to the police. The police went to their home to make some investigation but apparently did not take any further action. The Applicant believed that was probably because the AL had bribed the police.
8. In view of the attack, the Applicant’s brother advised her to leave her home to avoid the harm. The Applicant attended an employment agency in Dhaka in around September 2013 for training as domestic helper overseas. Then she left Bangladesh to take up employment in Hong Kong on 18 December 2013. During the three months’ training, she heard that both AL men came to her home looking for her and took away valuables from her home; and the police also came for investigation.
9. The Applicant maintained contact with her mother, who relocated to her grandmother’s home in another village an hour away from their original home. Her mother passed away in 2018. Her son is now living with his paternal grandparents. The Applicant had no information whether AL people are still looking for her. Her brothers are also making plans to leave Bangladesh.
The finding of the Board
10. The Applicant gave evidence before the Board. The Board found she was partly credible and partly not. It had serious concerns regarding the Applicant’s claim of harm from her ex-husband which was only disclosed during her screening interview. The Board found that undermined her claim that this is a genuine circumstance and threat to her life. The Board also found the substantial delay of some 12 months since her arrival in Hong Kong before making her non-refoulement protection application undermined her overall credibility.
11. The Board extensively tested the veracity of her claim of fear from the AL against authoritative and credible Country of Origin Information (“COI”). On the basis of the COI, it accepted that political violence was not rare in Bangladesh. Giving her the benefit of doubt, it accepted that her father and brothers were associated with the BNP and might have experienced conflicts with AL supporters, including being attacked and framed for false charges. But there was no evidence to suggest that the Applicant’s father was a significant figure in the BNP and her brothers had such a profile with the BNP that would give rise to a real risk of the Applicant being targeted for serious harm by the AL now or in the reasonably foreseeable future in Bangladesh. Having regard to the above and its assessment of her credibility, the Board did not accept that the Applicant had been attacked in her home or that she had in fact been threatened by the AL or anyone else. It did not accept there is a real risk that the alleged assailants or anyone else have a real intention to seriously harm or kill her if they saw her again as she claimed. The Board also considered her allegation of seeing the advertisement for foreign domestic helpers, of being able to secure a placement and being relocated to Dhaka for training within 10 or 12 days after the attack too much a coincidence as to cast doubt on the veracity of the alleged attack.
12. As for her fear of harm over the property dispute, the Board accepted that while it was possible that someone may have wished to permanently acquire the property owned by the Applicant and her family, the Board did not accept that she had demonstrated that she could not utilise the systems available in Bangladesh to assert her and her brothers’ claimed rights to possession and ownership of the property or in that connection she will be targeted for harm now or in the reasonably foreseeable future if she returns to Bangladesh.
13. As for the claim of harm from her ex-husband, the Applicant claimed that her ex-husband was associated with the AL and that one day he turned up in a drunken state with some AL supporters threatening her to go back to live with him. This is the only incident she had with her ex-husband while she was in Bangladesh.
14. At the hearing, the Applicant told the Board that one day before the hearing and after her thirteen-year old son had returned to live with his paternal grandparents, her ex-husband obtained her phone number from her son and contacted her by Facebook asking her to go back to Bangladesh. She believes her ex-husband asked her to return because he thought she had financial resources, having been in Hong Kong for a number of years. While the Board was unable to positively dismiss her claim that her ex-husband sought the assistance of AL supporters to force her return to live with him, the Board noted that she had divorced her ex-husband in 2013 and has not seen him or been threatened by him since leaving Bangladesh and that her ex-husband had remarried. Having regard to the totality of the evidence, the Board was satisfied that her ex-husband had not threatened the Applicant during this contact through Facebook or otherwise threatened her since their divorce and that the invitation for her to return to Bangladesh does not suggest an intention by her ex-husband to harm her if she in fact returned. The Board was unable to find that there is a real risk that her ex-husband will target her for harm now or in the reasonably foreseeable future if she returns to Bangladesh.
15. The Board was of the view that the Applicant is not a person of adverse interest to the AL or her ex-husband or anyone else and that there is no one that who would have any motive to devote his energy or resources to locate her in Bangladesh. Having regard to her personal background, the Board found that it would not be unreasonable for her to relocate to other parts of Bangladesh to avoid the risk of harm. The Board also found on the basis of authoritative and credible COI that she could receive adequate state protection in Bangladesh.
16. For the above reasons, the Board found that the Applicant had failed to establish her entitlement to protection under any of the applicable grounds under the USM and dismissed her appeal.
The legal principles applicable to judicial review
17. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
18. The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affirmation, she only exhibited a copy of the Decision and a covering letter from the Board. In the absence of specific or proper 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.
Conclusion
19. The Applicant’s primary claim is based on her fear of harm from the AL, from her ex-husband and from a property dispute. Having rigorously examined the 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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. It adopted a low standard of proof and accepted much of the Applicant’s evidence as she asserted. However, it found the Applicant incredible on the crucial issues of fact relating to the alleged attack by AL supporters. It found the Applicant fabricated her case and failed to prove the factual basis to support her claim for non-refoulement protection based on her alleged fear of harm from the AL. In respect of the other two basis of claim, the Board found on her evidence that she would face no real risk of harm if returned to Bangladesh. The Board also found that in any event she could avoid or prevent the harm by accessing internal relocation and seeking state protection. It was on that basis that the Board found she had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively 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 not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.
Dated 27th day of April 2023
| |
( Allen LEE )
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 27/4/2023
Khatun Mst Asma
Applicant’s ref. no:
Nil. |
|
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 27/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9225/17/11/236/B1053
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2279/17 (Formerly RBCZ 10530/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] 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”)
[3] 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
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|