NILA MOMOTAJ AKTER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2443/2019

[2025] HKCFI 2544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2443 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 23 August 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 19 August 2019 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 August 2017 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national.  She last arrived in Hong Kong to work as a foreign domestic helper on 11 June 2016.  She overstayed since 5 September 2016.  She was arrested by the police on 22 October 2016.  She made a non-refoulement claim on 1 December 2016.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her application was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Bangladesh, she will be harmed or killed by members of the Awami League (“AL”) and her creditor (the “creditor”) because of her participation in the activities of the Jamaat-e-Islami (“JEI”).

4.  The Applicant, now aged 37, was born in Village Modnudanga, Daulatpur, Khulna, Bangladesh.  She is a widow with one son.  Her parents are deceased.  Her three siblings are living in Bangladesh.  She had received formal education for ten years and had eight months’ experience working as a garment quality assistant in Bangladesh and as a foreign domestic helper in Hong Kong.

5.  The Applicant claimed that she joined the JEI in around 2007 and became an active member by the end of 2008.  In around May 2009, while attending a meeting with about 22 JEI members, 15 to 16 AL members arrived and warned that they should quit the JEI, or they would be framed for crimes and be killed.  Members of both parties started fighting.  She suffered injuries and was hospitalised for one and a half months.

6.  In around early 2012, in order to set up her own business of selling readymade garments, she took out a loan of 600,000 Bangladeshi Taka (“BDT”) from the creditor, who was an AL member.  She agreed to pay interest from the profit she made.  Her husband who was familiar with the creditor acted as guarantor of the loan.  The Applicant was not required to provide her land document as collateral.  In around mid-2012, before she started her business, she was cheated by her garment supplier and lost 600,000 BDT.  After being informed of the news, the creditor refused to give her any extension and demanded full repayment immediately.  Since then, the creditor started sending men to harass and threaten her regularly.  Sometimes, six to twelve men went to her home and assaulted her or her family members.  When she was alone at home, the men threatened to throw acid on her and kill her.  They also attempted to rape her.  She tried to register a complaint with the police but no follow-up actions were taken.

7.  In around December 2013, during a JEI election campaign in which about 200 to 300 people participated, 300 to 400 AL members stormed in and attacked the JEI members. The Applicant was trampled by the crowd and fainted.  When she regained consciousness, she found herself in a hospital. She was hospitalised for four to five days.

8.  One evening not too long after the general elections on 5 January 2014, when she and her husband were on the way to the market on a rickshaw, they were knocked off the rickshaw by two motorcycles driven by AL members.  They suffered injuries and were hospitalised for two to three days.  She believed AL members wanted to kill her because of she was unable to repay the loan and refused to join the AL.

9.  One day in around late 2014, the creditor with six to seven men came to her house demanding her to go out to meet them.  She refused.  They barged into her house.  Two to three men held her tightly whilst the others kicked and slapped her and pulled her hair.  They dragged her out of her house and threatened to rape her.  The noise alerted her neighbours, who intervened.  She was sent to the hospital where she stayed for eight to ten days.  While she was in the hospital, the creditor tried to harm her but was prevented by the hospital security guard.    

10.  Around six to seven days later, the creditor and his men came to her home.  They assaulted her and her family members.  One of them held a knife against her face and demanded repayment.  She fainted.  When she regained consciousness, she found herself in a hospital.  During her two to three months hospitalisation, the creditor and his men tried to get into the hospital on numerous occasions but were stopped by the security guard.  Nothing eventful happened within six months thereafter.

11.  Then, one late evening in end-2014, a group of 10 to 12 people barged into her house whilst the creditor was shouting outside. The men dragged her out of her house, and started kicking and punching her.  They threatened to kill her, sell her to a brothel, and pour acid on her, if she failed to settle the loan.  Her family members sought help from the neighbours, who intervened.

12.  Worried about her own safety, she hid in different areas in Dhaka for months. During this time, she learnt from her family that local AL leaders had sent scouts to ask her neighbours for her whereabouts.  Towards the end of 2015, she began her training course as a domestic helper in Comilla.  She commenced working in Hong Kong on 10 January 2016 as a foreign domestic helper.

13.  Her first contract lasted only for a month.  Upon her return to Bangladesh, she learnt that she had been framed for being a traitor of Bangladesh and a supporter of war criminals.  She hid in Dhaka for about one and a half months.  One day, when she and her husband were at her friend’s home, a large group of people led by AL leaders arrived.  They grabbed her friend’s collar and started assaulting him.  She tried to help but was attacked by those people with wooden sticks and iron rods.  She fell on the ground and was repeatedly punched and kicked.  Suddenly, someone fired a shot at her but the bullet and killed her husband.  She fainted at the sight.  When she regained consciousness, she found herself in the house of her friend’s neighbour.  After staying there for the night, she moved to another friend’s home in Gazipur.  To avoid the AL members, she came to Hong Kong on 11 June 2016 to work as a foreign domestic helper.

14.  In the end of 2016, she learnt that two-thirds of the loan had been repaid by her sister and the creditor had set a new deadline.  She also learnt that the creditor and AL members were still asking around for her whereabouts. 

15.  The Applicant claims that state protection is not available because the police sided with the ruling party.  She does not believe internal relocation viable, as the AL members could locate her throughout the country through their powerful network.

The finding of the Board

16.  The Applicant testified before the Board.  The Board found her testimony inconsistent with her evidence in the NCF.  It found a number of aspects of her claims vague, lacking in detail, confusing, inconsistent over time and far from convincing.  The Board had concerns about the reliability of her evidence.  It expected she would have maintained a consistent and detailed account of such key aspects of her claims, if she were speaking on her personal experiences.  It considered her inability to do so reflected poorly on her credibility and reliability as a witness.  Hereunder are some examples of the Board’s concerns in her testimony.

17.  In relation to her past working experience in Bangladesh, she said in her NCF that she worked in a garment factory for about six months in 2006, before she married and before she joined the JEI.  She also said she took out the loan from the creditor to set up her own business in 2012.  However, she told the Board that the only time she worked in Bangladesh was after she had fled from her village in 2015 when she worked in a garment shop in Dhaka.  When confronted with the inconsistency, she excused herself saying that she had problems remembering things and had a poor memory.

18.  As to the date of her husband’s death, she said in her NCF that he was shot and killed in Dhaka in about March or April 2016, upon her return to Bangladesh after her first contract of employment in Hong Kong ended.  However, she told the Board that she could not recall when he died but it was a long time before she started her first contract in Hong Kong in January 2016.  When pressed, she said it was about one to six months before she first came to work in Hong Kong, indicating that it was sometime between mid-2014 to late 2014.

19.  As for her political affiliation, she said in her NCF she and her family supported the JEI and she became a formal JEI member in 2007.  However, she told the Board that she was a member of Bangladesh Nationalist Party (“BNP”) and that the AL member chased her to Dhaka because she worked for BNP.  When confronted with the inconsistency, she explained that the JEI and the BNP were “the same thing” and “the same party”.

20.  Significantly, soon after starting her testimony, she told the Board that she did not want to answer any more questions or say anything else and repeatedly urged the Board to make its decision on the basis of her previous evidence.  Her demeanour, responses and her conduct at the hearing, including her unwillingness to engage in discussion of her claims and defence of its credibility caused the Board to have serious concerns about her reliability as a witness and the credibility of her claims.  The Board also noted that she had not provided any medical evidence to support her claim of being unable to remember past events or to indicate that she had an impaired memory or ability to recollect.

21.  The Board was prevented from discussing her claims in depth, seek further information or explanation in relation to a number of matters of concern, such as the reason why she claimed to have been such a passionate JEI supporter and continued with the party work despite having been subjected to physical violence, the threats on numerous occasions, the alleged loan from the creditor, the false charges, and her subsequent departure from Bangladesh.  It was unable to test the veracity of her evidence.  Hence, the Board concluded that she was not a reliable witness, and that her evidence was embellished, exaggerated and fabricated in part to create a claim to be owed international protection.   It did not accept, inter alia, that she had borrowed money from the creditor, that she was a JEI or BNP supporter, that she was a person of adverse interest or had been subjected to adverse treatment or physical harm by AL members, and that she was subject to police investigation or false charges.  Thus, it came to the conclusion that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Bangladesh.  Applying the law applicable to the non-refoulement protection to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

22.  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

23.  In her supporting affidavit, apart from repeating her case, she made the following complaints, which can be perceived as grounds of judicial review:

(1)  the Board did not consider her claim properly;

(2)  she was not given legal representation in her appeal before the Board; and

(3)  the Board was not neutral as indicated by its speech and behaviour.

At the oral hearing, after the legal principles in the preceding section had been explained to her, the Applicant submitted that the Board erred in law in the following respects:

(4)  the interpreter provided to her did not interpret what she said fully, and

(5)  she was not believed because she was unable to produce documentary evidence.

Ground (1), (4) and (5) - The Board did not consider her claim properly; inadequacies of the interpretation service and the Board’s refusal to believe her evidence due to lack of documentary evidence

24.  This is an un-particularised complaint.  The Applicant gave no particulars of the impropriety of the Board’s Decision.  But, in answer to the Court’s question about errors of law, procedural unfairness and irrationality in the Decision, she raised only two points, ie inadequacies of the interpretation service (ie Ground (4)) and the Board’s refusal to believe her because of her failure to provide documentary evidence (ie Ground (5)).

25.  She submitted that the interpreter provided to her did not interpret her submission fully to enable the immigration officer to understand her case.  She was then sent to prison where she wrote out her case by herself.  After she was released from custody, she had legal representation.  Her lawyer told her that she could make additions to her submission, which she did.  She could not confirm at what stage the above incident occurred.  The Court was able to re-construct from her written signification, her NCF, the Notice, Notice of Appeal and the Decision the following chronology of events:

(1)  in December 2016, the Applicant made a written signification dated 2 December 2016 setting out the basis of her claim after she was arrested for overstaying[6];

(2)  on 3 August 2017, she filed her NCF;

(3)  on 15 August 2017, she attended the screening interview;

(4)  on 29 August 2017, the Director issued his Notice;

(5)  on 12 September 2017, she filed her notice of appeal;

(6)  on 9 May 2019, she attended the oral hearing before the Board.  

The Court showed the Applicant her NCF and her signature therein.  She confirmed her signature on the NCF and that she had no complaint about the interpretation service when the NCF was prepared. The NCF contained an interpretation clause signed by the interpreter confirming that she had accurately interpreted the entire content of the NCF and all of the attached documents to the Applicant in Bengali language.  This is the first document or statement by the Applicant upon which the chain of inquiries relating to her non-refoulement claim starts.  That was the document which the Board acted on.  Whatever inadequacies in the interpretation service provided to her before the completion of her NCF, including her written signification (even if it was the product of such inadequacies) was overtaken by this NCF, which is the product of a proper interpretation service.  The Applicant could have no complaint against the record of the screening interview as she had signed to acknowledge that the record had been read back to her, that she had been invited to make addition, deletion or amendment  and that she confirmed she had no comments to make.  The Applicant’s story about inadequate interpretation service may be a misunderstanding on her part of what happened before the NCF was prepared.  What happened on that occasion may be just some preliminary inquiry for administrative purposes after she was referred to the Immigration Department following her arrest by the police.  The Court does not find it necessary to investigate if that indeed was the case.  That event, even if it had occurred has no place in the non-refoulement proceedings.  As this Court surmises, it is probably the Applicant’s misunderstanding of the purpose of that event.  It is totally irrelevant.  There is no substance in this ground.

26.  As for the Applicant’s complaint about the Board’s refusal to believe her evidence due to lack of document which she was unable to obtain, there is also no substance.  As set out in paragraphs 16 to 22, the Board set out quite fully its finding and its reasons for not believing the Applicant.  The Board had tested her evidence against inherent probability, internal consistency and common sense.  It rejected her evidence primarily because of the multiple and significant inconsistencies between her evidence and her testimony before the Board.  It never drew any adverse inference from the Applicant’s failure to produce any documentary evidence in support.  That failure was not even mentioned by the Board.

Ground (2) – Lack of legal representation at the appeal before the Board

27.  The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance. But that high standard does not require that she be provided with legal assistance throughout the entire non-refoulement procedures.  It was held by the Court of Appeal in Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[12] nor in the judgment of FB v. Director of Immigration[13] 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.  The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved.  Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage of the non-refoulement process.  It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of her case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview.  During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and her legal representative presents her claim to the immigration officer and makes submissions on the law and the fact on her behalf.  Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the NCF and answers in the screening interview given under legal advice.  Unless the legal representative advises appeal, the legal assistance stops.  In view of the limited resources available, legal assistance could only be provided with reasonable proportionality.  Public funds could not be used to provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend.  The high standard of fairness is deem attained under such circumstances.  If a claimant wishes to proceed further, she may do so on her own.  All the benefits that legal representation could have afforded the claimant are contained in the hearing bundle before the Board.  Her interests are taken care of by an independent board, the law and the high standard of fairness.  She would not be prejudiced due to lack of legal representation at the hearing before the Board.

28.  The Applicant had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in the NCF and the answers in the screening interview given by her under legal advice.  All these had been presented to the Director, which were in turn presented to the Board.  Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (3) - The Board was not neutral as indicated by its speech and behaviour.

29.  This is another un-particularised complaint. The Applicant did not identify any speech or behaviour which indicates any bias on the part of the Board.  On the contrary, as indicated in paragraphs 50, 53, 59 and 63 of the Decision, the Board had in the discharge of its duty of joint endeavour tried to obtain more information about her claimed circumstances or to clarify the inconsistencies in her evidence.  However, her unwillingness to further participate in the hearing prevented the Board from doing so.  The Court could not identify any from its reading of the Decision.  The Court will also bear this ground in mind in its overall scrutiny of the Board’s Decision.

Overall scrutiny

30.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense, inherent consistency and inherent probability.  It accepted part of the Applicant’s evidence, but found her incredible as regards the core issues of her claim.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 his burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

31.  For the above reasons, the leave application 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 23 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)]

[6] At pages 47 to 95 of the Hearing Bundle annexed to the Applicant’s supporting affirmation

[7] cacv 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007