MARMA AONGMAPRU v. YU CHEUK-MAN, ESQ.

HCAL369/2017

[2018] HKCFI 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 369 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Bangladeshi national who arrived in Hong Kong on 28 October 2013 as a foreign domestic helper permitted to remain until 28 October 2015 or two weeks after termination of her contract, whichever the earlier date.  Her employment was prematurely terminated on 5 January 2014 but she failed to depart as required and overstayed from 20 January 2014.  On 1 May 2014 the applicant was arrested by the police for illegally overstaying in Hong Kong.  On 4 May 2014 she lodged a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 14 May 2015 and 2 November 2016.  She lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected her petition/appeal on 29 June 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 6 July 2017 and requested an oral hearing which was set down on 25 October 2017.  The applicant did apply for legal aid which was refused so she appeared in person.

3.  The basis of the applicant’s claim was that if she were to return to Bangladesh she would be harmed or killed by her husband who was the secretary of the Awami League (“AL”) in her home area.  She had been a victim of domestic abuse and ill‑treated by him before she left Bangladesh.  The Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in full in their decisions so I only intend to summarise it here.

4.  The applicant was married and had two sons born in 2000 and 2003 respectively. Her sons have been under the care of her parents since January 2013 just before she came to work in Hong Kong as a foreign domestic helper.  From 2007, her husband became a violent drunk who would beat the applicant regularly with his fists; four to five times a week.  She would often escape to her neighbour’s home to avoid beatings.  In 2011, the applicant discovered he was having an affair with another woman.

5.  She had tried to report him to the police in the past but the view of the police was that it was a domestic and family matter; they would not interfere.  In addition, her husband was a leader of the AL in their area and the view of the police was that he could handle his own family.  Once in mid-2012, during a beating he poured kerosene oil on her and tried to set her alight but she managed to run away to her parents’ home.  This led her to plan to leave Bangladesh to escape him as she feared for her own safety and begin domestic helper training with a view to a job in Hong Kong.

6.  She applied for a job in Hong Kong at the end of 2012 and completed the training in May 2013 before leaving for Hong Kong.  Her first contract was prematurely terminated in September 2013 and her second contract was prematurely terminated in January 2014.

7.  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”).

8.  The adjudicator of the TCAB treated the appeal/petition as a rehearing.  The applicant had her rights explained to her with the assistance of an interpreter and the applicant elected to answer questions and give evidence.  The adjudicator correctly set out the law, key legal principles and authorities relevant to the four applicable grounds in his decision.  He considered the standard of proof and burden of proof as well as the high standards of fairness required in the assessment of a torture claim.

9.  The adjudicator did not doubt the applicant’s evidence of her husband’s behaviour and domestic violence but did not find that this and her evidence could be defined as torture according to section 37U (1) of the Immigration Ordinance Cap 115 and therefore the torture risk claim failed.

10.  Similarly, the adjudicator having accepted her fear arose from her husband and the violence he inflicted upon her and that being a private matter, meant the applicant could not demonstrate she had a well-founded fear of persecution for a reason arising out of the Refugee Convention.  Therefore, she failed to show that she had a claim for protection from refoulement under this ground.  Her persecution risk claim failed.

11.  The adjudicator considered her BOR 3 risk and found the injuries the applicant described did not attain a minimum level of severity; she had not suffered serious ill‑treatment, physically or mentally.  It did not amount to torture or CIDTP.  He found she had failed to establish she would face a genuine and substantial risk of being subjected to torture or CIDTP if refouled.  The adjudicator found that even if there was such a risk, on the Country of Origin material he referred to and found relevant, there was available State protection.  The BOR 3 risk claim failed.

12.  The adjudicator went on to find the applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under the BOR 2 being violated if refouled; her BOR 2 risk claim failed as well.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

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

14.  There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for 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 the lawyer assigned.  During the hearing, the applicant explained that she omitted to tell the adjudicator about her duty lawyer’s poor performance because she was nervous during the appeal.  Another example would be ground 6; it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  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 Country of Origin material and research, 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 fairly considered relevant, objective and recent material that supported the applicant’s concerns as well.  In ground 4, the adjudicator did consider whether the State exercised due diligence in his decision and found it an individual act of a rogue police officer who refused to offer protection to the applicant.  He found no evidence that the State failed to provide reasonable protection or that the State deliberately did nothing to assist the applicant.  These grounds are not reasonably arguable.

16.  The applicant complains she was not given sufficient time to prepare for her hearing, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.

17.  There is a complaint the applicant answered all the questions during the appeal honestly and is aggravated that her credibility was found questionable.  This submission makes no sense when the adjudicator made no finding as to credibility and clearly believed the applicant’s evidence and claim.

18.  There is also a complaint that the Director did not screen or assess the BOR 2 risk claim before the adjudicator of the TCAB.  This submission makes no sense when the Director’s BOR 2 decision is dated 2 November 2016 and the appeal hearing is dated 14 November 2016.  Clearly the adjudicator is considering the rejection by the Director of the BOR 2 risk so the Director must have assessed it first.

19.  During the oral hearing requested by the applicant, I asked her if she had anything to add to her grounds in her affirmation.  She said she had one request and that was she be allowed to remain in Hong Kong until 2018 because by then, a solution regarding her husband would be ready.  She did not elaborate further but this was not an expansion to any of the eight grounds.  In fact, it tends to suggest this application was made to buy her time in Hong Kong.  However, I will not treat it as her intention without any further evidence or admission on her part.

20.  Notwithstanding that, I do not find any ground that shows there was an error of law by the 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.

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