DIPA BILKIS NAHAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1143/2018

[2019] HKCFI 2192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1143 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for judicial review of the decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration as the interested party (“the Director”).

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 13 December 2018.  However, the applicant was absent on that day.

3.  By an Order dated 13 December 2018, this Court dismissed her application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons dated 19 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  On 27 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 24 January 2018 and the applicant should file an affirmation to state her reasons for her absence on 13 December 2018 within 7 days from the date of the direction.

6.  The applicant failed to comply with my directions. I requested the applicant to state her reasons before me. She took oath to say that she did not receive the letter. The letter‑box was an open box and it was possible that the letter was taken away by someone else. She has no reason not to pursue the matter.

7.  I am satisfied with her explanation for her absence on 13 December 2018.

8.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 13 December 2018 dismissing her application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave to apply for judicial review of the Board’s Decision.

The applicant

10.  The applicant is a Bangladeshi national. She came to Hong Kong as a domestic helper and was allowed to stay until 2 April 2016 or two weeks after termination of her contract, whichever was earlier. Her employment contract was prematurely terminated on 25 April 2014. She applied for extension of stay and was permitted to stay as a visitor until 21 August 2014. She overstayed and was arrested by police on 2 September 2014 and was referred to the Immigration Department for investigation. She lodged her non‑refoulement claim on 5 September 2014. On 6 October 2014, a Removal Order was issued against her. On 12 October 2014, she was released on recognizance.

11.  She claimed that if she was repatriated to Bangladesh, she would be forced to marry her ex‑husband Harun-Ur-Rashid who had tortured and beaten her. She also claimed that she would also be harmed or even killed by Anwar Hossain, people from Awami League related to Anwar, Khoka and some unknown men in Bangladesh.

12.  In her statements given to the Director and the Board, she stated that she had a very bad experience in her marriage, which finally dissolved. Her husband treated her badly. She was attacked by him from time to time. She had had a miscarriage once. Her husband had a girlfriend. She was once raped by a young man called Khoka. Her father had a business dispute with his cousin, Anwar Hossain, who was connected with the Awarmi League people. As a result, her maiden family became bankrupt and her father was continuously harassed by the Awami League people. She reported the matter to the police, which did not take any action.

The Director’s Decisions

13.  The Director considered her application in relation to the following risks:

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

b.   Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.   reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

14.  By Notice of Decision dated 29 February 2016 and Notice of Further Decision dated 12 July 2017 respectively, the Director refused her application.

The Board

15.  The applicant appealed to the Board. The Adjudicator, having considered her case, decided that no hearing was necessary for her appeal. In paragraph 8 of the Board’s Decision, he said:

“Having regard to the materials and the nature of the issues raised by the Appellant, in particular, there was no issue as to the Appellant’s credibility; neither did she submit new evidence in support of her appeal and petition, I was satisfied that both could justly be determined without a hearing and have proceeded to make my determination without holding one.”

16.  By Decision dated 8 June 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decisions.

17.  The Board accepted the applicant’s evidence. The reasons for the Board to reject her appeal are that the complaints were unhappy series of wholly domestic situations [78]; that those events did not involve Bangladeshi government [79]; that her complaints, except her rape, did not amount to torture as that term is defined [80]; that there was no evidence that any adverse conduct on their part was instigated, or condoned, either by that party, or the state in which it operated [81]; that internal relocation was an available option for her [85]; and finally she had failed to show any substantial grounds for believing that there was a foreseeable, real, personal and present risk that she would face for torture if she was returned to Bangladesh [92].

Application for leave for judicial review

18.  By Form 86 dated 20 June 2018, under Order 53, rule 3(2) RHC, the applicant applied for leave for judicial review of the decision of the Board with the Director as the interested party.

19.  In her affirmation in support of her application dated on 20 June 2018, she set out the reasons in support of her application in a narrative form. I shall summarize her specific grounds below:

(1)  the Adjudicator did not conduct an oral hearing for her, nor did he ask her to make written submissions; and

(2)  the Adjudicator had relied upon hearsay and outdated material in relation to the Country of Origin Information.

DISCUSSION

The Board’s Decision

20.  As the Board has accepted the applicant’s stated facts, it is a matter whether the Board had applied the appropriate law and Conventions to the facts, drawing the necessary and reasonable conclusion on the foreseeable, real and personal risk that she would face for torture if she is returned to Bangladesh, in coming to its decision.

21.  The applicant has not raised any of the above issues in her grounds in support of her application. However, I have examined and considered the reasons set out in the Board’s Decision. I agree with the Board’s Decision.

22.  I shall now deal with the applicant’s grounds in support of her application below.

23.  Under section 12 of Schedule 1A of the Immigration Ordinance, Cap 115, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal the appeal can be justly determined without a hearing.

24.  The Adjudicator had considered the applicant’s case and made his decision that no hearing would be necessary for fair disposal of her appeal.

25.  The applicant has raised ground (1). The question turns on whether the Adjudicator had committed any procedural irregularity in making his decision of not having an oral hearing.

26.  The Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 (Cheung CJHC, Lam V‑P & J. Poon J.) held that there is no absolute right to an oral hearing [26]. At paragraph 54, it said:

“Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved.  It is worth repeating that the purpose of holding an oral hearing is not only to assist the adjudicator in his decision‑making, but also to reflect the torture claimant’s “legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute”: Osborn, para 82.”

27.  High standards of fairness requires joint effort on the part of the Board and the applicant to work together in order to ensure fairness in the adjudication of the applicant’s appeal. The Adjudicator had set out his reasons for not holding an oral hearing. It will be for the applicant to say why his decision is unfair to her and what purpose an oral hearing could have assisted her in her appeal.

28.  The applicant has not set out why she would be prejudiced for not having a hearing before the Board. The Board accepted her evidence and would not require clarification. In the circumstances, the Adjudicator was right to make that decision, which he was entitled to do under the law. Ground (1) therefore fails.

29.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the immigration officer . The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The applicant has not set out any reason why she considers that the information is unreliable. Ground (2) also fails.

CONCLUSION

30.  Since the applicant’s application for judicial review has no reasonable prospect of success, I dismiss her 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