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

HCAL 2868/2018

[2020] HKCFI 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2868 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by replacing the Secretary of Justice on behalf of the Director of Immigration (“the Director”) with the Board as proposed respondent and replacing the Board with the Director as interested party.

The applicant

4.  The applicant is a Bangladeshi national.  She came to Hong Kong and worked as a domestic helper.  Her employment contract was terminated prematurely, but she was permitted to stay because of her outstanding labour dispute with her former employer.  She overstayed since 21 November 2007.  She surrendered to the Immigration Department and lodged her non-refoulement claim by written significations dated 23 April 2015 and 26 February 2018.

5.  The applicant claimed that, if refouled, she would be killed by her brother-in-law because of their bad relationship and her brother-in-law had once thrown a knife at her.  The details are in the Board’s Decision paragraphs 16-28.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

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.risk of persecution by 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”).

7.  By Notice of Decision dated 6 July 2018 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that her life would be threatened upon her return to Bangladesh [14]; that state protection was available to her [22] and that internal relocation was an option open to her [25].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and attended a hearing.

9.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and for the reasons [31-41], found that she failed to establish that there were substantial grounds in support of her claims in relation to the risks above and also that relocation is an option open to her [48-51]. Below is a summary of the reasons held by the Board.

1.The family of her late husband had no intention of killing her as she was allowed to attend his funeral.

2.Her brother-in-law only threatened to kill her by throwing a knife at her if she took away the children. This happened in 1999. Now the children had grown up, the youngest twin being 21. They would be at liberty to see her.

3.She did not report the matter to police, saying that the police were corrupt.

4.However, the country of origin information showed that police protection would be available to her if she returned to her country.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 14 December 2018 for leave to apply for judicial review of the Board’s Decision.  She did not set out any reasons for her application.

DISCUSSION

12.  I shall bear in mind that the Board’s Decision must be considered with rigorous examination and anxious scrutiny.

13.  As the Board did not accept that she was under any real risk if she returned to Bangladesh, her claim will fail.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  There is nothing to show that the Board had committed any error of law or procedural unfairness.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.  The Court refuses to grant leave to apply for judicial review.  Accordingly, her application is dismissed.

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