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

HCAL 505/2019

[2021] HKCFI 1820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 505 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 Applicant being present in open court;

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 4 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  She appeared before me on 24 May 2021.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a Bangladeshi national.  She came to Hong Kong as a domestic helper on 28 January 2014.  Her contract was prematurely terminated.  She overstayed and was arrested by police on 21 September 2016.  She lodged her non-refoulement claim with the Immigration Department by a written representation dated 28 November 2016.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her husband and his girlfriend, Chakma.  She was also afraid of being discriminated by Muslims Bangladeshis for being a Buddhist from Chittagong Hill Tracts.

6.  Her husband used to abuse her by beating her shortly after their marriage.  Her husband also had extra-marital affairs with Chakma, who had attempted to kill her by throwing stones at her on one occasion when she was walking past her house.  Because of her husband’s abuse, she had to move to live with her father.  Her father sent her back to her husband.  But her husband assaulted her in front of her father.  Her father then took her back to his home.  She is one of the minority groups as she is a Buddhist from Chittagong Hill Tracts herself, the majority of the people are Muslims.  She was discriminated by the Muslims there.  In March 2013, she came to Hong Kong to work as a domestic helper.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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

a.  risk of torture under Part VII C 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”).

8.  By Notice of Decision dated 9 June 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there were no substantial grounds in believing that she would face the risk of harm from her husband or Chakma upon her return to Bangladesh [11]; that state protection would be available to her [13] and that internal relocation was an option open to her [14].  Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 30 May 2018 and 26 July 2018 respectively.

10.  The Board, having considered her evidence, rejected her appeal for the reasons that there was no evidence of a real chance that the applicant would be killed, harmed or tortured by a public official and her claim on Torture risk failed [130]; that there was no evidence that the applicant had committed any criminal offence that would call for capital punishment and therefore her claim on BOR 2 risk failed [131]; that the applicant failed to establish that she would be subjected to BOR 3 risk if she returned to Bangladesh [134] and that there was no evidence in support of her claim on Persecution risk [138-139].

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant filed Form 86 dated 21 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant had submitted her statement attached with the Director’s Decision and the Board’s Decision.  I shall summarize the grounds in support of her application.  She complained that she does not speak English, but she did not have the service of an interpreter for the legal documents; that she had no legal representation before the Board; the adjudicator dismissed her claim because he was biased that she was an unreliable witness and he did not take into account that the events happened long time ago and she had vague memories.

DISCUSSION

13.  The applicant appeared before me.  She confirmed that she had no complaint against the hearings or the adjudicator.  She was free to express herself at the hearings.  She produced some documents, which she said would support her case for the Court’s consideration.  She said that she obtained the materials online.  She was unable to explain why she was unable to produce them to the Board.  I decided to accept them on the basis that I will look at them without making investigation into them myself as I have no power to do so.  Those documents will be left on the file.

14.  The documents submitted are on the perspective and persistence of militarization in Chittagong Hill Tracts.  It sets out the history and development of Chittagong Hill Tracts being turned into a Muslim-dominated region by the military.  This issue may relate to the issue of internal relocation in her case.  The Board had considered this issue and found in paragraph 77 of its Decision that the applicant may find it difficult, if not dangerous for her to relocate in Bangladesh outside the CHT.  It accepted that relocation outside the CHT would not be an option for her.  However, the Board did not consider internal relocation in her case because it found that she is not eligible for non-refoulement protection under the relevant statutory provisions and the Convention.

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  The grounds raised by the application in support of her application do not assist her.  High standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.  Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 [13].  The applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage.  Re: Miah Mohammad Sahin [2020] HKCA 982 [24].  That she considered that the adjudicator was biased is only her opinion.  The adjudicator did not say in the Board’s Decision that she was a liar or she had fabricated her case although he said that her evidence was inconsistent in various aspects.  These grounds fail.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.  I refuse to grant leave for the applicant to make her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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