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HCAL 1640/2019
[2020] HKCFI 1744
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1640 of 2019
BETWEEN
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Rani Shantona |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 30 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and by deleting the Board as interested party.
The applicant
4. The applicant is a Bangladeshi national. She came to Hong Kong and worked as a domestic helper on 17 October 2017. Her contract was prematurely terminated on 13 October 2018 but she did not depart. She overstayed since 28 October 2018. She was arrested by police and referred to the Immigration Department on 17 November 2018. She applied for non-refoulement claim by written representations on 19 December 2018 and 24 December 2018 respectively.
5. The applicant claimed that, if refouled, she would be ill-treated by her husband’s creditors and the warriors/militants of the Islamic extremists.
6. She married her husband in 2012. He was fond of drinking and did not find a job. When he was drunk, he abused her by hitting her with hands. He borrowed money from other creditors. The creditors came to her house to demand repayment of money. They vandalized the house. She did not report to police. Her husband had twice attempted to douse her in kerosene and set her on fire. The neighbours set her free. Other people told her that her husband was running a business in drugs. She also said that the majority of her husband’s neighbours were Muslim whereas her husband’s family and she were Hindu. In her in-laws’ place of living, there were warriors, the Muslim extremists who approached her husband’s family and told them to convert to Islam several times. They also asked her husband to plant bombs against the Muslims. She also witnessed the warriors raping her mother-in-law and sister-in-law and setting their house in fire. As a result, they died in the fire incident. She escaped with her son to Panchogarh where she stayed for two months and nothing happened. She faced financial difficulties. She received training as a domestic helper and came to Hong Kong to work as a domestic helper.
The Director’s Decision
7. 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.risk of persecution by 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”).
8. By Notice of Decision dated 28 February 2019 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that there would be any risk of her being harmed by her enemies upon her return to Bangladesh [11]; that state protection was available to her [12] and that internal relocation was an option open to her [19].
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 22 May 2019.
10. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.
11. The Board considered the applicant’s evidence and found that there were inconsistencies and/or exaggerations in her evidence [88]; that taking into account all of the factors it was of the view that most, if not all, the core assertions to the non-refoulement claim had been frabricated or are wholly unreliable [99].
12. On the basis of the evidence, the Board did not accept that there was a real chance that she would be subjected to any of the risks above [109].
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 14 June 2019 for leave to apply for judicial review of the Board’s Decision.
14. She had attached the grounds on which relief is sought to Form 86. They are grounds against the Director and the Board. I shall focus on the grounds relating to the Board.
1.The Adjudicator failed to make sufficient enquiry before finalizing the determination, having failed to take into account that she was being kept in custody in the immigration detention centre and failed to give sufficient time or chance to her to arrange relevant evidence to support her claim.
2.The Adjudicator reached the wrong decision, which is unfair and unreasonable.
3.The state failed to provide sufficient protection.
4.She was tortured by the state law enforcement agencies.
DISCUSSION
15. As the Board did not accept her core evidence in support of her claim, there is no factual basis in support of her claim.
16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court. The applicant cannot complain that the Board had not considered the evidence which she did not adduced at the appeal hearing unless the Board has the duty to elicit such evidence on its own volition. There is simply no such evidence at the hearing before the Board.
17. Although the applicant was being detained in the immigration detention centre, she did not raise the issue that she needed time to obtain evidence before the Board. Up till now, the applicant is still unable to provide any information as to what evidence she wanted. This issue is therefore not relevant for her application and will not be considered. The rest of Ground (1) are her opinions without any evidence in support of them and will not assist her application.
18. Grounds (2) and (3) are her opinions without any evidence in support.
19. Ground (4) was not raised in her statements to the Director or the Board.
20. There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to her case.
21. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
22. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 30th day of July 2020
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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 30/7/2020
Rani Shantona
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 30/7/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15666/19/3/31/B2001
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 67/19
(formerly RBCZ 9/19)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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