PARVIN MST RAHANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL552/2017

[2018] HKCFI 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 552 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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Bangladeshi national who last arrived in Hong Kong on 23 August 2014 to work as a foreign domestic helper but her contract was prematurely terminated on 26 September 2015.  She did not leave as required and overstayed in Hong Kong from 11 October 2015.  On 29 March 2016 the applicant surrendered to the Immigration Department and then lodged a non-refoulement protection claim by written submissions three times between 28 June and 25 August 2016 but they were considered as applications “not made”.  On 26 September 2016 the applicant submitted a written signification to lodge a claim again and this was considered to be “made”.  The Director of Immigration (“the Director”) rejected the applicant’s claim on 18 April 2017.

2.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 18 August 2017.  She filed a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing which was set down for 23 January 2018.  The applicant appeared in person having had her application for legal aid refused.

3.  The basis of her claim was that if she returned to Bangladesh she would be harmed or killed by members of the opposition party, the Awami League (“AL”) including her ex-husband because of her political involvement in the Bangladesh Nationalist Party (“BNP”) in the past.  Both the Director and the adjudicator of the TCAB set out her evidence and claim in detail in their decisions therefore, I only intend to summarise it here.

4.  The applicant comes from a family of BNP supporters and when she was at school she worked for the student arm of the BNP.  When she left school in around 2000 she continued to support the BNP who were elected into power in 2001.  She entered an arranged marriage with her husband in 2003 who was a branch general secretary of the AL at the time.  The AL came into power in December 2008.

5.  After this election, the applicant had marital problems with her husband because of their political differences and he beat her with a cane after an argument over politics.  She was hospitalised for a week after this attack.  Eventually she returned to live with her parents in mid-2009 and divorced her husband.  Her son continues to live with her husband. She did report that assault to the police but they refused to register it.  After she returned to her parents’ home, local AL leaders demanded she join the AL and leave the BNP.  She was assaulted on numerous occasions.  She was targeted because she was popular in the village and helped many poor people.

6.  In January 2014 the AL won a general election which was boycotted by the BNP.  Not long after her ex-husband and other AL supporters came to look for her at her parents’ home but she was out; instead they beat her parents, sister and burnt down her family home.  The applicant and her family moved to another part of Bangladesh some 12 hours away by bus and rented a home to live in but two months after they arrived there, some AL supporters from her home village and local village confronted her in her new home and demanded she joined the AL.  They told her they could find her anywhere in Bangladesh.

7.  The applicant and her family relocated to a new home some 15 hours away by bus to get away from those targeting her.  The applicant then learnt about the possibility of working in Hong Kong and went to Dhaka to train before flying to Hong Kong in August 2014.  She has had no contact with her family since then.  She believes her life is still in danger from AL supporters if she returned home.  They would be able to locate her anywhere in Bangladesh.

8.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.  The adjudicator treated the applicant’s appeal as a rehearing and arranged an oral hearing.  The applicant adopted the information in the appeal bundle which contained all her previous evidence and elected to answer questions in the appeal.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He also set out her evidence and claim and his assessment of it.

10.  The adjudicator accepted the applicant’s claim of political violence in Bangladesh supported by Country of Origin information (“COI”) but found no evidence of a practice of AL members attempting to force BNP members to switch allegiance to AL.  The adjudicator asked the applicant questions regarding her activities with the BNP and tried to elicit details of it.  Her answers were vague and inconsistent with her non-refoulement claim form as well as inconsistent with further evidence she gave in the same appeal hearing.

11.  The adjudicator set out many examples of her inconsistencies and gave full reasons for why he found her evidence implausible, vague and inconsistent.  The explanations she gave in the oral hearing were not persuasive.  He did not find the applicant credible nor a genuine claimant.  He did not believe she was a target of the AL in her home village or any other village she chose to hide in.  He found that she had fabricated her claim so as to create a basis upon which to apply for non-refoulement.

12.  As a result of his careful assessment, the adjudicator found the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purposes of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

13.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the applicant’s oral submissions.  I find the adjudicator’s decision to be without fault.  He analysed material, claim and her evidence very carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the eight grounds of this application.

14.  There are eight grounds of her affirmation and almost all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of her lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but again there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

15.  In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did not need to consider COI in depth because he found the applicant was not credible and therefore not at risk.  It was unnecessary to assess State acquiescence or whether Bangladesh had a consistent pattern of mass violation of human rights that lead to a personal risk to the applicant.  These grounds are not arguable.

16.  The applicant complains that she was not given sufficient time to prepare for her appeal, the appeal bundle was in English and she was confused during the appeal.  I am satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained her.  She elected to give evidence.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.  In fact, in contradiction to her ground, the applicant admitted during the oral hearing that she had the procedure explained to her by the interpreter and she understood it.

17.  There is also a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected that claim at the same time as he rejected the other three applicable grounds.  In other words, the Director considered all four grounds together and did not consider the BOR 2 risk claim separately.

18.  I do not find any ground that shows there was an error of law by the meticulous adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse 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