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HCAL 1634/2019
[2021] HKCFI 1406
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1634 OF 2019
BETWEEN
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Papia |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant first entered Hong Kong on 10/5/2014. She was a domestic helper under a contract of 2 years. Her contract was terminated on 24/5/2014. She left but later returned to Hong Kong from Macau on 18/7/2014 under a new contract. This contract was also terminated. She overstayed since 22/10/2014. She surrendered to the Immigration Department on 28/10/2014. She then lodged the non-refoulement claim in this case on 8/1/2015. [1]
Background [2]
2. The applicant was born on 7/10/1986 in Charmalia village, Barisal district, Bangladesh. She attained class 10 level. She was single. Her father and siblings lived in Bangladesh. She was a garment factory worker in Dhaka in 2013. Her family were supporters of the Bangladesh Nationalist Party (BNP). She was a member of the BNP. She assisted in organizing meetings and taking photographs. She had campaigned for the BNP during an election.
3. On 7/10/2013, about 11 am, her brothers were attacked by people from the Awami League (AL) at the market. There was a fight between the two groups. She was informed at school and rushed to the scene. She and other villagers brought her brothers to a hospital. One of her brothers needed stitches of an open wound at his head. The other brothers had bruises and swellings over their bodies. They were hospitalized for 3-5 days. Her brothers did not report as it was useless.
4. She learned from others that DI (D) and Hashu (H) were among the assailants. D and H were notorious gangsters. She saw them planted bombs during the election in 2008. She thought they were prominent members of AL as they had no job and very dedicated to political activities.
5. The next day (8/10/2013), she was intercepted by D and H on the way to school. D demanded her to marry him. D threatened to abduct her or even kill her if she refused. She was scared and ran home. She did not report the incident as the police was biased. They would help AL members only.
6. Shortly afterwards in October, she relocated to Dhaka for her safety. She stayed with her aunt at Adabor. She worked in a factory. However, she was harassed by 3 unknown men everyday. She did not know if they were sent by D and H.
7. She was advised by her aunt to left Bangladesh for Hong Kong. After she received training in Bogra for 4 months, she came to Hong Kong in May 2014.
8. She thought the police would not help. AL was in power and the police would not help BNP members. She could not relocate as AL members could hunt her down. She was a single woman and would be subject to harassment in Bangladesh.
9. She last contacted her father on 15/12/2017. Her father was safe. He told her that D came by to ask about her. Her father did not tell D.
10. She feared that D and H would harm or ill-treat her if she returned to Bangladesh. Both of them were members of AL.
The decision of the Director
11. The Director found that there was no substantial ground to believe that there would be real risk of ill-treatment by D and H. The future risk of harm was unlikely to materialize for the following reasons:
a. There was a fight between her brothers and the gang of AL on 7/10/2013. There was no detail background of this incident. She did not know the reason leading to the fight. The was no connection between this fight and her claim.
b. She was never harmed by D and H. During the encounter with D on 8/10/2013, D did not attack her although she refused to marry him. She managed to run home. This incident was 8 years since she joined the BNP in 2005.
c. There was no evidence that the AL party was behind D and H. There was no evidence that they targeted her.
d. She was safe in Adabor. She could find a job in a factory. She was not located by D and H or other AL members.
e. She speculated that the police would not assist BNP member like her while AL was in power. She did not report to the police. There was no evidence that the police refused to assist or condone the conduct of D and H.
f. Having considered various COI, the Director acknowledged that there were incidents of politically motivated harassment on members of BNP by AL in Bangladesh. The AL and BNP were hostile to each other. However, there were news reports revealing that the police had been taking action against AL lawmakers when they committed offences. There were complaint channels to higher authorities if a police officer refused to assist. The Bangladesh Police Portal emphasised quality service to citizens making Bangladesh a better and safer place. Citizen would be treated equally in the eyes of the law.
g. The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country and the population was over 157 million. Besides there were programs to assist poor women in obtaining employment at various districts.[3] Given her age and background, she should be able to relocate to Dhaka, Bogra, Khulna and Chittagong. It would be very difficult for D and H to locate her.
12. There was no ill-treatment to the applicant which amount to “a minimum level of severity”. The problem with D and H was of private nature. It was nothing to do with any Convention reason. There was no evidence that the Bangladesh government had instigated, acquiesce or consent to the acts of D and H. There was reasonable State protection. There was reasonable relocation option. There was no torture inflicted on the applicant within the definition under s.37U of the Immigration Ordinance.
13. The Director rejected her claim on 30/1/2018.
The decision of TCAB
14. The applicant attended a hearing on 28/1/2019 before the TCAB. The adjudicator pointed out the following aspects which undermined the applicant’s credibility:[4]
a. The applicant said she finished schooling when she was 19. On the contrary, she said the attack on her brother and her encounter with D and H was in October 2013. At that time, she was still going to school. By 2013, she should be already 27 given her birthday was on 7/10/1986. She could not explain the confusion.
b. In relation to the attack to her brothers, the applicant was not at the scene. She heard about the attack and was told the identities of the attackers by others. Her brother told her that the police took no action. It was not her personal knowledge.
c. The applicant said during the hearing before the TCAB that there were 3 encounters with D and H.[5] However, she only mentioned one in her NCF. The applicant conceded that she had acknowledged the accuracy of the NCF. It was compiled with the assistance of the DLS and an interpreter. The adjudicator pointed out that the applicant should be able to understand her responsibility to give all information.
d. The adjudicator pointed out that the assertion of the applicant in relation to future risk of harm was pure speculation. The assertion that D and H could locate her was not supported by any evidence.
15. The adjudicator concluded that the applicant was not a credible witness. He was unable to attach any weight to her evidence. He concluded that the applicant invented the basis of her non-refoulement claim.
16. The adjudicator rejected the applicant’s claim on 11/6/2019.
Judicial review
17. The applicant filed the leave application for judicial review on 14/6/2019. In her affirmation in support, she stressed that her life was under threat in Bangladesh. Her enemies were the AL members. She disagreed with the decisions of the TCAB and the Director.
18. This court fixed a hearing on 23/2/2021. The applicant confirmed that she had nothing further to update. She had no specific complaint. She explained that she was terminated early twice because she could not cook the food as requested by her employers.
19. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
20. The adjudicator had analysed her evidence in detail. There are indeed some critical inconsistencies which seriously undermined her credibility. I agree with the findings of the adjudicator.
21. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
22. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 20th day of May 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 20 May 2021
Papia
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 May 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10258/18/2/142/B1152
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3485/17
(Formerly RBCZ 10282/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 30/1/2018, §§9—11.
[2] Decision of the Director dated 30/1/2018, §§8.1—8.28.
[3] Northern Areas Reduction of Poverty Initiative (NARI), Tarango and Human development and Women Empowerment in Bangladesh.
[4] Decision of the TCAB dated 11/6/2019, §§63—73.
[5] One occurred 2 days after the encounter on 8/10/2013. One week later, there was another encounter.
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