TANCHANGYA NABONITA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 988/2017

[2018] HKCFI 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 988 of 2017

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 refused.

Observations for the Applicant:

1.  The applicant is a 31-year-old national of Bangladesh who arrived in Hong Kong on 26 October 2013 with permission to work as a domestic helper until the expiration of her employment contract on 26 October 2015 or within 14 days of its early termination.  On 4 September 2014 when her employment was prematurely terminated, she did not depart within 14 days but instead overstayed until she was arrested by the police on 22 September 2014.  After she was referred to the Immigration Department for investigation, she lodged her non-refoulement claim with the Department on 1 October 2014 on the basis that if she returned to Bangladesh she would be harmed or killed by the Shetelor Bengalis.  She has since been released on recognizance pending the determination of his claim.

2.  The applicant was born to the Tanchangya ethnic minority in Antapara, Roangchhori, Rowangchhari, Bandarban District in the Chittagong Hill Tracts (“CHT”) in Bangladesh.  After leaving school she helped in her family farming in her home village.  As the Tanchangya minority who were mainly Buddhists were discriminated against by the Shetelor Bengalis Muslims majority resulting in frequent violence including burning down houses of the Tanchangya people.

3.  When the Tanchangya minority found the local police unwilling to help them, they therefore formed their own support groups to protect and assist their own tribe including one known as the Jono Shoghoti Shamity (“JSS”) aimed to help their fellow female victims of sexual or violent abuses inflicted on them by the Shetelor Bengalis, of which the applicant was a member, and in 2006 she was in charge of the office in her home district in Antapara. 

4.  One day in 2010 the applicant was approached on the street by five men in army uniform led by a man known as MI of the Shetelor Bengalis who threatened to kill her unless she quit JSS.  On the same evening MI and his men came to the applicant’s home and made the same threats to kill her and to burn down her family’s house unless she quit JSS.

5.  For the next several months the applicant found herself being stalked by Shetelor Bengalis men, and one day in late 2010 MI and his men came to her home and made the same threats to her and her family. Thereafter, the applicant and her family decided to take refuge at Bagaichori for several weeks before returning to their home.

6.  One morning in June 2011 while the applicant and her siblings were worshipping in the Buddhist temple in the village, about 20 – 30 Shetelor Bengalis came with arms and weapons that the applicant and others ran to hide in the woods.  Later when she returned to her village, she found her home being burned down by the Shetelor Bengalis who had also raped other Tanchangya women and attacked the Tanchangya men including her parents and her brother all of whom had to receive treatments in the hospital. 

7.  In January 2013 as her brother had financial difficulties and was unable to repay some of his debts, and at his request the Applicant agreed to help him out by applying to work as a domestic helper in Hong Kong so that she could send him money from her salary, and so she left Bangladesh on 26 October 2013 for Hong Kong as a domestic helper, and when her employment contract was terminated, she overstayed in Hong Kong and subsequently lodged her non-refoulement claim, for which she completed her Non-refoulement Claim Form (“NCF”) on 30 June 2015 with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 17 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director found the absence of further threats from MI and his Shetelor Bengalis followers during the months when the applicant was undergoing training as a domestic helper and her ability to leave Bangladesh without any trouble indicative of the low risk of future harm to the applicant and that she was not targeted by the authorities, and that in the absence of any reliable evidence of any involvement of the state or police in those threats against the applicant that state protection would be available to her upon her return to Bangladesh.

10.  On 28 August 2015 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended two oral hearings on 21 July 2016 and 31 August 2016 during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 1 December 2016 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found many inconsistencies and contradiction in the applicant’s case as between her assertions of fact in her NCF and what she stated during the hearing which were inherently incredible and far-fetched, and that she was an evasive witness who appeared to be inventing much of her evidence, and that her explanations for her failure to have mentioned in her NCF or during screening interview assertions of facts raised for the first time at the hearing were implausible and lacking in credibility, and concluded that she has failed to establish that there is a real chance that she would be subjected to ill-treatment of any sort if she is refouled to Bangladesh. 

12.  On 16 November 2016 the Director by letter invited the applicant to submit additional facts which may be relevant to her claim on her absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”) for his further consideration, but in the absence of any response from the applicant the Director by a Notice of Further Decision dated 7 December 2016 again rejected the applicant’s claim.

13.  On 8 December 2016 the applicant again appealed to the Board against that further decision of the Director, for which she attended another hearing on 25 August 2017 before the Board during which she indicated that she had no further information to submit in relation to BOR 2 risk.  On 4 September 2017 her appeal was again dismissed by the Board.

14.  On 1 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for his intended challenge:

(1)  failure on the part of the Board to properly understand the new problems caused by Rohingya Muslims fleeing from Myanmar into her home country;   

(2)  failure on the part of the Board to make proper inquiry into Country of Origin Information (“COI”) as to the problems caused by Rohingya Muslims in Bangladesh;

(3)  failure on the part of the Board to properly consider the risk of harms that she would face upon her return to Bangladesh;

(4)  failure on the part of the Director to provide her with more opportunity to submit additional facts regarding BOR 2 risk and to take proper inquiry into COI relevant to her claim; and

(5)  failure on the part of the Director and the Board to properly consider her claim.  

15.  These are all very broad and vague assertions of the applicant without any particulars or specifics as to how they applied to her case, or how the Director or the Board had erred in their decisions, or in what ways were the recent plight of the Rohingya Muslims relevant to the applicant’s situation in Bangladesh, as the Board clearly found in its further decision that the applicant’s assertion that Rohingya Muslims are forcibly occupying land in Bangladesh which belongs to the Tanchangya people is not supported by any COI reports, and that it is the applicant’s own case that she has never personally encountered any Rohingya Muslims in the past, nor has she had any negative experience at the hands of the Rohingya Muslims in Bangladesh.

16.  Furthermore, as held by the Court of Appeal, even the existence of consistent pattern of gross, flagrant or massive violation of human rights in the home country per se would not constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013, and Gallolu Kankanamalage Nimal Perera v Director of Immigration Petition Team CACV 215/2012, 23 September 2013.  

17.  Given the fact that the applicant’s claim was rejected essentially on her credibility for the detailed reasons set out in paragraphs 58 – 75 of the Board’s decision including detailed analysis of those photographs of her village produced by the applicant, any attempt to challenge the Board’s reliance of COI to assess the situations in Bangladesh including the impacts of the Rohingya Muslims appear to me futile and pointless, and that it is well established principle that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against her on the core of her claim that she was a member of JSS or the person in charge of the office in Antapara and in particular that she was personally targeted by the Shetelor Bengalis, I do not find any basis or merits in any of these grounds of the applicant.

18.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave 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