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

HCAL 2/2022

[2025] HKCFI 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2 of 2022

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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 January 2022 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 23 December 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 December 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant was a Bangladeshi national. She last entered Hong Kong on 19 March 2016 to work as a foreign domestic helper.  She was permitted to stay until 19 March 2018. She overstayed and was arrested by the police on 23 March 2018.   On 16 April 2018, a removal order was issued against her.  Then she made a non-refoulement claim on 21 May 2018.

3.  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 was dismissed by the Board’s Decision.  She now seeks leave to review that Decision.

The Applicant’s case

4.  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, if returned to Bangladesh, she will be harmed or killed by members of the Awami League (“AL”) because of her support for the rival political party, namely Bangladesh Nationalist Party (“BNP”).

5.  The Applicant, now aged 37, was born and raised in Dhaka, Bangladesh.  She is single. Her parents are deceased.  Her three siblings are living in Bangladesh.  She had two years’ experience working as a domestic helper in Hong Kong.

6.  The Applicant’s father was a member of the BNP and she was a supporter.  In the afternoon of 15 March 2016, when she and her father were walking on a street in Mirpur, two AL members approached them.  One of them attempted to hit her father with a hockey stick but failed.  The other tried to stab her father with a dagger.  In the struggle, that man accidentally stabbed himself and died as a result.  The Applicant said that the reason of the attack was her father’s participation in a BNP protest.  

7.  After the attack, the Applicant went to Savar and stayed for one day before leaving Bangladesh for Hong Kong.  While she was on her way to the airport, she called her father.  But the person who answered the phone told her that her parents had been murdered and there was a murder case against her.  She did not have enough time to ask for details or to report the case to the police because she had to leave Bangladesh urgently by air. 

8.  She does not believe that the Bangladeshi authorities and police would protect her, as they are under the influence of the present government.  She does not believe internal relocation viable because she believes she will be arrested as soon as she arrives at the Bangladesh airport.

The finding of the Board

9.  The Applicant first arrived Hong Kong on 19 March 2016.  She only raised her claim for protection on 21 May 2018 more than two years later after she was arrested for overstaying.  In accordance with section 37ZD of the Immigration Ordinance, the Board drew adverse inference on her credibility for not raising her claim for protection as soon as she arrived in Hong Kong.

10.  The Board found her claim about the attack on her and her father by two AL members was purely premised on her words alone.  There was a total absence of supporting evidence.  She did not suffer any physical injury during the attack, nor did she require any mental treatment as a result of the attack.  Furthermore, that there was no documentary evidence to support her allegation that she was involved in a murder case.  She merely relied on what she was told by the man answering her call to her father’s phone.  She never made any attempt to find out the details of alleged murder case against her or to report the matter to the police to clarify her situation.  The Board attached no weight to such hearsay evidence.  As the Applicant was able to leave Bangladesh through proper immigration channels using her Bangladeshi passport, the Board did not accept her assertion that her name had been put on the check list for murder and that she was wanted by the police.

11.  The Board did not accept her account of the attack on her and her father and that she was wanted by the police for murder. Even on the basis of the account of events as she put forward, she had not suffered any serious harm during the incident as to entitle her to protection under Torture Risk ground.  In addition, the Board found there was no involvement by any public official or person acting in an official capacity in inflicting the alleged ill-treatment on her.  It was also not her case that there was any acquiescence by the state in inflicting ill-treatment on her or there was any consistent pattern of gross, flagrant or mass violation of human rights in Bangladesh.  Hence, the Board found the Applicant had failed to establish ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance as to entitle her to protection under this ground.

12.  On the basis of objective country of origin information (“COI”), the Board accepted that though there may be doubts about the effectiveness of the Bangladeshi police, the same COI also suggested that there are objective indications that the Bangladeshi government has taken practical steps to curb corruption and to improve professionalism of the police.  It was satisfied that reasonable state protection is available to the Applicant and that there is no evidence to suggest that the authorities and police would refuse to render her protection, if requested.

13.  The Board also found that as an able-bodied person, the Applicant could safely relocate to other cities in Bangladesh to avoid the perceived harm or risks of harm from the AL members, which were localised within her home area.

14.  As for Persecution Risk ground, the Board found that the AL members could not be considered as state actors for the purpose of considering Persecution Risk.  It also found that the Applicant’s dispute with the AL members was purely a private dispute between themselves which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  Therefore, the ill-treatment did not fall within the protection under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  In any event, state protection would be available to avoid the risk of harm.

15.  As for BOR 2 Risk ground, the Board found that there was nothing to suggest that the Applicant would be deprived of her life by the Bangladeshi government or that her life would be threatened by a risk targeting her personally.

16.  As for BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest she would be at such risk of such harm if refouled.

17.  Applying the law applicable to non-refoulement protection to the above findings of fact, the Board found the Applicant had failed to establish her claim to 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

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[5].

Grounds for judicial review

19.  The Applicant advanced the following two grounds of application in her Form 86 and supporting affirmation:

(1)  the Applicant was not given a fair opportunity to “keep forward her submissions” in an oral hearing, nor was she invited to submit written submissions; and

(2)  the Board’s decision is based on news which is not officially recognised or is hearsay.

20.  After the legal principles in the preceding section had been explained to her, the Applicant confirmed that she had no complaints about errors of law in the Decision and left it to the Court to look for errors of law in the Decision on her behalf.  She also confirmed that she had no complaint about procedural unfairness and irrationality in the Decision. She reiterated that she wanted to stay in Hong Kong.  When explaining the principles applicable to procedural unfairness, this Court emphasised to her that the essence of procedural fairness is to ensure that she was able to understand the procedures and to participate in the proceedings meaningfully.  She was told that the provision of language assistance was to ensure that she was able to understand the questions asked of her by the Board, to answer the Board’s questions and to present her case fully to the Board.  She was also asked if she had been given legal assistance, at least at the important stages of the proceedings though not at all stages.  She replied unhesitatingly that she had no complaint about procedural unfairness.   Thus, there is no substance in her first ground.

21.  The Applicant’s second ground is directed at the Board’s reliance on the COI, based on which it found that adequate state protection is available.  The Board directed itself on the legal principles applicable to the use of COI: see paragraphs 57 to 60 of the Decision.  The COI referred to by the Board are all from authoritative and credible sources, such as Country Report on Human Rights Practices 2018 of Bangladesh published by the United States Department of State, EASO Report 2018 – Bangladesh Country Overview published by the European Asylum Support Office and Dhaka Tribune post.  The Board considered COI which corroborated the Applicant’s assertion about police ineffectiveness and corruption as well as those which suggested improvements to police efficiency and effectiveness, availability of channels of complaint against police impunity and abuse of power and the government’s effort in eradicating corruption.  After weighing the information, it came to the conclusion that adequate state protection is available.  This is a finding of fact which is open to the Board to make on the available evidence and which the Court may not interfere. 

Overall scrutiny

22.  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 relating to the four applicable grounds 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 assessed the Applicant’s evidence carefully.  It found her incredible. It did not accept her account and was not satisfied on the evidence before it that the Applicant had a well-founded fear of being subjected to proscribed harm if returned to Bangladesh.  Hence, it found the Applicant had failed to establish the factual basis in support of her claim for protection.  As the Applicant bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

23.  For the above reasons, the Applicant’s 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