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

HCAL 578/2019

[2024] HKCFI 1445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 578 of 2019

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;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   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 28 February 2019 for leave to apply for judicial review (the “leave application”) of “Decision of Torture Claim Appeal Board Dated 29.01.2019” and “Decision of Director of Immigration on date 11.06.2018”. She named “The Petition Terms (Security Bureau) sent my U.S.M. case and give me the decision on 29.01.2019” as the proposed respondent and “Torture Claims Appeal Board Non-Refoulement Claims Petition Office” as the interested party.

2.  The Security Bureau was not the decision maker of either of the two decisions she identified in the Form 86.  The Court’s enquiries revealed that the Director of Immigration (the “Director”) had not made any decision on 11 June 2018 in relation to the Applicant’s non-refoulement claim.  That date is probably a typographical error and refers to the date of the Director’s Notice issued several days earlier on 31 May 2018 refusing her claim for non-refoulement protection.  Pulling all these facts together, it is obviously the Applicant’s intention to seek judicial review of (1) the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director in his Notice of Decision dated 31 May 2018 (the “Notice”). 

3.  While the Decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. Thus, the proposed respondent and interested party should be the Board and the Director respectively and the Decision of the Board is the decision in respect of which relief is sought.  Accordingly, leave is granted to amend her Form 86 to give effect to her intention.

4.  The Applicant is a Bangladeshi national.  She last entered Hong Kong on 2 September 2016 to work as a foreign domestic helper.  Her contract of employment was prematurely terminated but she did not leave Hong Kong within the prescribed period.  She was arrested on 18 September 2017 for overstaying. On 8 November 2017, she raised a non-refoulement claim.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By his Notice dated 31 May 2018, the Director rejected her claim.  Her appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of the Decision and the Notice.

The Applicant’s case

5.  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 and the record of her screening interview in the presence of her lawyer.  In gist, she claims that she will be harmed by members of the Awami League (“AL”) upon her return to Bangladesh because of her involvement with the Bangladesh Nationalist Party (“BNP”).

6.  The Applicant, now aged 34, was born in Sylhet, Bangladesh.  She received 11 years of education and has worked as a foreign domestic helper for about 7 months in Hong Kong.  Her family supported the BNP and she had been registered as a member of the student wing of the BNP (Bangladesh Jatiotabadi Chatra Dal, or “JCD”).  Her father was a BNP activist working in the youth wing of the BNP Jubodal.

7.  The Applicant attended a BNP rally a few days before 15 September 2013.  She claimed that the AL instigated a bomb attack on that rally and many people were killed.  She managed to return to her home with the help of her brother. 

8.  On a day in 2014, a few AL members asked her to leave the BNP and join the AL.  She refused and they threatened to kill her.  A few days later, on 5 May 2014, twelve to fifteen AL people went to her home and attacked her.  They stabbed her 12 years old nephew to death and kidnapped her father.  She received knife wounds on her back and her head and fell unconscious.  She was hospitalised for twenty-five days. After her discharge, she stayed at her sister’s home some half an hour away by vehicle.

9.  To save their life, her mother sent her to Hong Kong to work as a foreign domestic helper and sent her brother to India.  She did not know where her father was.

10.  She does not believe the Bangladeshi police would help her, as the AL was the ruling party in Bangladesh and corruption was rampant.  She does not believe internal relocation feasible because the AL will be able to locate her when she registers her name while trying to get a job.

The finding of the Board

11.  The Applicant testified before the Board.  The central detail of her claim is her and her father’s association with the BNP.  In the opening paragraphs of her written statement attached to her NCF she claimed to be a registered member of the student wing of BNP (the JCD).  However, it was her clear evidence at the hearing that she was not a member of either the BNP or any of its associated organizations.  When asked to explain the inconsistency, she said she had nothing to say.  The inconsistency raised serious doubts about the credibility of her evidence.

12.  The Applicant claimed to be a BNP supporter brought up in a family of BNP supporters.  Yet, she was unable to answer most of the questions about the basic but central facts about the BNP.  She was unable to state the full name of the BNP, its objective, its history, describe its flag and identify more than one main leader of the BNP. The Board found her ignorance about the BNP cast serious doubts on the credibility of her case.

13.  The Board also found her evidence about the alleged association of her father with the BNP problematic and incredible.  At the screening interview, the Applicant claimed that her father was a worker in the Jubo Dal, the youth wing of the BNP.  Yet, at the hearing, she claimed that her father was associated with Jubo Unnayan or youth development and confirmed that he was not a member of the BNP or any of its associated organisations.  When asked to explain the inconsistency, she asserted that whatever she had said before was right and that she had had a fever for the last two days.  The Board did not accept her explanation adequately explained the vast and numerous differences in her evidence.  Her alleged illness was also not supported by any medical evidence.

14.  While claiming her father was a BNP activist, the Applicant’s evidence at the hearing was that her father just attended party meetings and processions, put up posters and nothing else.  She was asked to explain what she meant when describing her father as an activist.  She could not explain.  The Board found her claim in respect of her father’s political profile inconsistent and unconvincing.  It did not accept the Applicant or her father had any association with the BNP at all or that she and her family members experienced any problems from the AL.

15.  The Applicant is testimony about how her nephew was allegedly stabbed to death was different from the version given in her Notice of Appeal filed with the Board.  The discrepancies in the above events were material and significant.  The Board found that she would not have given wildly different accounts about those events if the event had truly occurred. 

16.  The Applicant was unable to explain why her family did not report the alleged murder of her nephew to the police.  Her explanation was that there was no point in making a police report because the AL was the ruling party.  When asked why her family had apparently taken no action for the alleged kidnapping of her father, her reply was that both she and her brother had fled the country.  Her explanation is inconsistent with her evidence that at the time she was staying with her sister in Jalalabad for eight to nine months and her mother only informed her about her brother’s move to India after she had come to Hong Kong.  The Board found her explanations to be implausible and “far-fetched” and that had these events occurred, it is incredible that she or her brother would not have either gone to the police or to the BNP to seek assistance. 

17.  The Board found the Applicant’s evidence incredible and that the events she relied on did not occur.  It therefore found she would not be at risk of any of the proscribed risks of harm upon her return to Bangladesh.  Hence, it dismissed her appeal and confirmed the decision of the Director in the Notice.

Legal principles applicable to judicial review

18.  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[6].

Grounds for judicial review

19.  The Applicant did not advance any grounds for judicial review in the Form 86.  In her supporting affirmation, she repeated the essence of her case, emphasised that the AL is in power having won 292 of 300 seats in the parliament and her fear of being killed by the AL.  She had been invited by the Court via its letter dated 21 February 2024 to advise the Court of her first language and contact numbers and to file submissions.  She did not respond.  At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. 

20.  The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk of harm if returned to Bangladesh.  That is not permissible.  In the absence of specific grounds of application, the Court in an application for judicial review 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. 

Discussion

21.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on her fear of harm by the AL.  The Decision of the Board was based on its finding of the Applicant’s credibility.  The Board had carefully weighed the evidence and assessed her credibility.  It found her incredible and rejected the entirety of her case.  As the Applicant bears the burden of prove of her claims, such a finding is fatal.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

22.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Board’s Decision is a finding of fact which is 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 Decision was utterly without fault.  The Court could identify no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test. Having considered her grounds for application, the Court is satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review is refused.

Conclusion

23.  Leave to amend the Form 86 is granted.  The Applicant’s application for 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