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

HCAL 3003/2018

[2021] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3003 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 10 December 2018.

2.  The Applicant is a Bangladesh national.  She entered Hong Kong on 13 September 2013 to take up employment as a foreign domestic helper.  Her employment contract was prematurely terminated on 25 July 2014.  She did not leave Hong Kong and became an over-stayer since 9 August 2014.  She was arrested by the police on 22 May 2017 for over-staying.  

3.  She made non-refoulement claims by way of written representations on 3, 4, 8, 10, and 13 July 2017 claiming she is in fear of being harmed or killed by her creditors.

4.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].

5.  By a Notice of Decision dated 9 February 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims. On 22 February 2018, she appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board on 10 December 2018.  On 28 December 2018, she applied for leave to apply for judicial review against the Decision of the Board.

6.  The Applicant did not appear at the first hearing. She attended at the re-scheduled hearing.

The Applicant’s’ case

7.  The following account of the Applicant’s case is mainly based on her statement attached to her non-refoulement claim form prepared by her with assistance of the Duty Lawyer Service and the record of her screening interview.

8.  The Applicant is single.  She has three siblings who are all residing in Bangladesh.  She started working at the age of 14.  Her mother suffered from blood cancer and needed a lot of medical expenses.  She borrowed four loans from members of the ruling political party, Awami League, to pay her mother’s medical expenses and blood for transfusion. 

9.  She first borrowed BDT 50,000 at a monthly interest of BDT 5,000 from Anwar in early 2010 for two to three months.  Interest would be doubled if repayments were not made.  She was unable to pay interest from the second month onwards.  Anwar pressed for repayment and slapped her father breaking his tooth.

10.  In mid-2011, she borrowed BDT 15,000, BDT 25,000 and BDT 20,000 from Mokhlesh, Jashim and Kutubuddin respectively.  She had to pay interest in the sum of BDT 2,000 to BDT 3,000 a month for each loan.  She was only able to pay some of the interest.

11.  Thereafter, her creditors visited her home and workplace to press for repayment.  They assaulted her, pull her hair and cut her hair.

12.  One day in mid-2012, Anwar came to her home and threatened to kill her, put her in a sack and throw her into the river. 

13.  One day in around April 2013, her creditors came to her home and demanded repayment.  Jashim carried at knife and Anwar carried a pistol.  They threatened to kill her saying, “we are all politicians, you better pay back our money or else there would be dire consequences.  No one will notice and no one will know even if you are killed.”  They claimed that the total amount owed with interest increased to around BDT 800,000 to one million.  They assaulted her until she fell unconscious.  At the suggestion of her mother, the Applicant fled to Faridpur to stay with her paternal cousin, Sharmin. 

14.  The Applicant was informed by her mother that her creditors had been to her home while she was hiding in Faridpur and assaulted her mother.  Her creditors also threatened to kill her wherever she is.  Then she fled Bangladesh and came to Hong Kong to work as a foreign domestic helper.

15.  The Applicant did not consider internal relocation a viable option because she had no friends or relatives she could rely on and the creditors being closely related to Awami League have resources to locate her throughout Bangladesh.  She did not think the police will help her because they will not act against Awami Leaque.

The finding of the Board

16.  The Board identified multiple anomalies in the Applicant’s evidence which led the Board to the conclusion that the central aspects of her case are not as she claimed.  The Board found significant inconsistencies between her evidence about the assaults and medical treatment given at the oral hearing and that given at the screening interview.  The Board came to the view that her evidence appeared to evolve to address the Board’s concern as they were put to her.  Her evidence about the amount of loan borrowed and accumulated was uncertain.  She could produce no probative evidence to support her belief of the close connection between her creditors and Prime Minister Sheikh Hasina.  Her evidence about her creditors’ connection with Awami League was vague.  The fact that the Applicant had no problem when relocated to Faridpur and Farikapool is also inconsistent with her claim about the creditors’ network and ability to locate her.  The Board is also concerned why the Applicant did not make any claim until some three years after her permission to stay had expired, despite her claims rely entirely on matters which arose before her departure from Bangladesh to Hong Kong in September 2013.   In conclusion, the Board did not find the Applicant a credible witness.

17.  The Board accepted that the Applicant’s mother was ill and needed medical treatment.  But it did not accept that the Applicant borrowed money from the creditors and was personally responsible for covering the costs of that treatment or that she sourced loans from the creditors to cover those costs.  It did not accept that she was ever targeted for harm, or actually harmed by her creditors or their networks in connection with her claimed debts or otherwise as the Board did not accept that she had ever been directly indebted to them.  The Board was not satisfied that the Applicant faces a real chance of harm of any kind in Bangladesh in the reasonably foreseeable future for any of the reasons claimed.  Accordingly, there is no factual basis on which to justify non-refoulement protection on any of the applicable grounds.

The grounds of application    

18.  In her Notice of Application, the Applicant advanced the following seven grounds for applying for judicial review:

(1)  she was not legally represented before the Board;

(2)  the Decision erred in law or was otherwise procedurally unfair;

(3)  the Board failed to adopt a proper structured approach in assessing her credibility;

(4)  there was no reasoned, considered approach in evaluating the evidence, the Board’s finding is based on its own assessment of the evidence in an ad hoc manner;

(5)  the Board was in breach of the duty to maintain a high standard of fairness;

(6)  the Board made assumptions without reference to the context in Bangladesh; and

(7)  the Board failed to consider the Applicant’s and her family’s situation, the physical and mental torture she suffered and her mother’s illness.

Ground (1) – lack of legal representation

19.  Torture claimants are usually provided with legal assistance by the Duty Lawyer Service up to the stage of the screening interview, but not the proceedings thereafter.  Usually they are not represented before the Board.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  What is important is to ensure that the claimant is not prejudiced for want of legal representation.

20.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director.  The non-refoulement claim form and statement which essentially contain the essence of her claim were prepared with legal assistance and legal advice.  These documents were before the Board at the oral hearing.  Though the claimant may not have the full advantage of legal representation, she had at least the minimum that legal assistance could assist her.  The Board has a duty to maintain a high standard of fairness and ensure a fair hearing.  At this hearing, the Applicant confirmed that she had the services of a qualified interpreter at the oral hearing before the Board and that she was free to present her case and make submissions.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation at the oral hearing before the Board.

Ground (2) – error in law and procedural unfairness

21.  The Applicant did not particularise the error in law and the unfairness complained of.  All that she could say was that the Decision to refoule was erroneous and unfair because she still had problem at home.  The Decision was based on the Board’s finding of facts and the Applicant’s credibility. 

Grounds (3), (4) and (7) – credibility

22.  The Applicant was asked to elaborate on these grounds.  Despite repeated attempts, all that she could say was that her problem is still there and she cannot return to Bangladesh.  She said she had already made her submission in writing and relied on those submissions.

23.  These are complaints about finding of credibility and finding of facts which are exclusively within the province of the Board as the tribunal of facts.  The Board considered its first task was to make findings on relevant factual matters.  It bore in mind section 37ZD of the Immigration Ordinance which identifies factors which may be considered damaging to a claimant’s credibility, as well as relevant sections of the Principles, Procedures and Practice Directions of the Board, and Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme[12].  These materials provide guidance in assessing a claimant’s credibility and the reliability of her claims and evidence.  In its Decision, the Board outlined topic by topic its examination of the various issues material to the Applicant’s claims.  The Board spent nine and a half pages in its analysis.  In the end, the Board was not satisfied that the Applicant was a credible witness and rejected her evidence about the loans, the physical and mental suffering she alleged she had suffered.  The Court did not consider there was any substance in these grounds.

Ground (5) – breach of high standard of fairness

24.  The Applicant also failed to identify in what way was the Board in breach of its duty to maintain a high standard of fairness.   Having considered the Decision and the evidence, the Court was satisfied that the Board had maintained a high standard of fairness in the conduct of the proceedings before it.

Ground (6) – assumptions out of context

25.  The Applicant quoted paragraphs 27 and 28 of the Decision in relation to this ground.  In paragraph 27, the Board discussed the inconsistencies between the Applicant’s evidence about the assaults and treatments she and her father received at the hands of creditors.  In paragraph 28, the Board discussed the Applicant’s mother’s illness.  The Board actually accepted the Applicant’s evidence.  It did not refer to or rely on any assumption. 

26.  If by “assumption” the Applicant meant the requirements which a claimant has to prove to substantiate a claim under any of the applicable grounds, such as harm of a minimum level of severity and the like, she is obviously misconceived.  These are not assumptions used by the Board to disentitle her from the claims but requirements she has to prove to substantiate her claims. 

27.  It is difficult to understand what the Applicant’s complaint is under this ground.

Conclusion

28.  There is no substance in any of the grounds advanced by the Applicant.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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[13].

29.  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.  For reasons as given by the Board, it did not accept the evidence of the Applicant.  It was on that basis that the Board found there was no factual basis to support the Applicant’s’ claim for non-refoulement protection under any of the four applicable grounds.  That is a finding of facts which is within the province of the Board as the fact finding tribunal to make.  The Decision of the Board was utterly without fault. 

30.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable. The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, 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 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] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] The Decision at para 17

[13] [2018] HKCA 524 at para 14(1)