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

HCAL 1959/2019

[2024] HKCFI 2826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1959 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Akter Lahmin (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Bangladeshi. She was born on 1 January 1987 in Dhaka, Bangladesh. She received 10 years of education and had about half a year of work experience as a foreign domestic helper in Hong Kong.

The Claim

3.  The Applicant relied on the following facts for her claim. She claimed to be an ordinary member and a General Secretary of the Bangladesh National Party (“BNP”). She attended rallies of the BNP. Her elder brother was also a member of the BNP.

4.  The Applicant claimed that some members of the rival political party, the Awami League (“AL”), asked her to join the AL two or three times. They came to her home in Narayanganj, Dhaka and threatened to kill her if she refused. The AL people also physically harmed her brother. The Applicant then moved to Khadiman Village.

5.  The Applicant claimed that her neighbour in the Khadiman Village (“SA”) was severely beaten up by some members of the AL for refusing to join the AL. She claimed that SA was affiliated with the BNP and SA’s brother was imprisoned for supporting the BNP. The Applicant decided to move to Voron Village.

6.  While the Applicant was staying in Voron Village, she received anonymous calls believed to be made by AL supporters. The callers asked by name to speak to the Applicant or the Applicant’s elder brother and they told her to quit BNP and join AL. They threatened to kill her if she refused.

7.  The Applicant claimed that she would be harmed or killed by the AL people if she were returned to Bangladesh.

Procedural history

8.  The Applicant last arrived in Hong Kong on 14 February 2014. Her permission to stay in Hong Kong as a foreign domestic helper was last extended to 14 February 2016 or 14 days after termination of her employment. Her employment was pre-maturely terminated on 17 August 2014. She did not leave Hong Kong within 14 days and overstayed in Hong Kong. She was arrested by the police on 6 January 2015 and referred to the Immigration Department on 7 January 2015. By a written signification of 10 January 2015, the Applicant lodged the Claim.

9.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 11 July 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (the “Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

The DOI Decision

12.  After considering all the relevant circumstances, the Director had doubt on the Applicant’s identity in connection with the BNP. She claimed to be an ordinary member initially but a General Secretary in next minute. The Director in any event was of the view that there were no substantial grounds for believing that the AL people intended to harm the Applicant. This was because the AL people only verbally threatened the Applicant and had never harmed her in the past. The Director also found that the alleged threat from the AL people was limited to her home area.

13.  The Director found that the overall conduct of the Applicant after her arrival in Hong Kong to be inconsistent with a person genuinely in fear of threats of being harmed or killed and that the alleged risk from the AL people was not as threatening as she claimed. The Applicant did not seek protection immediately after coming to Hong Kong but had instead waited until her arrest to make the Claim. The Director was not satisfied that the Applicant was facing a genuine and substantial risk of being subjected to serious ill-treatment by the AL people.

14.  There was no indication that the state was involved in, indifferent to or provided any form of encouragement to the AL people to harm or threaten the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some incompetence or ineffectiveness problems within the Bangladeshi police but there were objective indications in the COI showing that the Bangladeshi government took steps to improve the situation. The Director found that the Bangladeshi government was able and willing to protect the rights of its citizens. The availability of state protection further lowered or negated the level of risk if the Applicant were to return to her home country.

15.  The Director further found that internal relocation would be viable. If the Applicant moved to Dhaka or Chittagong, the AL people would have great difficulty in locating her.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

18.  In §§36-75 of the Board’s Decision, the Board set out the evidence given by the Applicant at different stages of the non-refoulement proceedings. The Board told the Applicant that her evidence seemed to be changing as the hearing progressed, depending on what inconsistency was put to her.

19.  The Board highlighted the inconsistencies and implausibility in the Applicant’s evidence at §§83-85 of the Board’s Decision. One example given by the Board related to the Applicant’s claim that she was both an ordinary member and the General Secretary of the BNP. When asked how she could be an ordinary member and the General Secretary at the same time, she replied that she thought the two positions were the same. The Board found that the positions were not the same and the Applicant would not have made this mistake if she were truly the General Secretary of the BNP.

20.  Another example given by the Board related to the Applicant’s testimony about being attacked once in the past. The Board noted this was inconsistent with her claim to the Director that she was never physically attacked and her claim in the Notice of Appeal that she had been attacked several times.

21.  The Board rejected the Applicant’s evidence in its entirety. It found that neither she nor her brother was affiliated with the BNP and they were never harmed in Bangladesh for political reasons. It further found that the Applicant was not of any adverse interest to anyone in Bangladesh and it was safe for her to return.

22.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

23.  In a judicial review, the court does not step into the shoes of the decision makers.

24.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

25.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

26.  The Applicant has failed to attend the court hearing scheduled for 26 September 2024 despite notice of hearing having been sent to her on 10 September 2024. As such, I proceed to deal with this application according to the papers already placed before the court.

27.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only produced the Board’s Decision and the Board’s covering letter as well as the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation.

28.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

29.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 very high standards of fairness.

30.  The Board was of the view that the Applicant had fabricated her claims in relation to her association with the BNP and the harm she suffered at the hands of the AL people. The Board considered that there was not a real risk that the Applicant would face any of the proscribed forms of harm should she return to Bangladesh.

31.  It was on such 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 under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

Conclusion

32.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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