SULTANA REBAKA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1146/2018

[2019] HKCFI 2333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1146 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as the interested party.

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) of the Rules of the High Court (“the RHC”), the applicant filed a summons dated 31 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  On 8 January 2019, this Court gave directions that a hearing be fixed at 10:00 am on 20 February 2019 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 the above direction.

7.  On the day of hearing, the applicant was given the final chance to explain her absence on 13 December 2018. She gave evidence on oath that she did not receive the Notice of Hearing, which was sent to her old address. She had changed her corresponding address on 20 June 2018, the same day when she filed her application for leave for judicial review of the Board’s Decision. The court somehow did not change her corresponding address accordingly. She intended to pursue her application at all times.

8.  I give the benefit of doubt to the applicant and I am satisfied with her explanation for her absence on 13 December 2018.

9.  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) of the 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.

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

The applicant

11.  The applicant is a Bangladeshi national. She came to Hong Kong as a domestic helper until 9 April 2016 or two weeks after termination of her contract, whichever was earlier. Her employment contract was prematurely terminated on 5 September 2014. She overstayed without the Director’s permission. On 27 October 2014, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 29 January 2015.

12.  She claimed that if she was repatriated to Bangladesh, she would be harmed or killed by her husband and her in-law’s family.

13.  The applicant claimed that after marriage with her husband, she lived with her parents.  She had been a domestic helper in Saudi Arabia and Lebanon for a few years.  After she returned to Bangladesh from Lebanon, she discovered that her husband had affairs with another woman hawker in the market.  She moved back to live her husband in order to keep an eye on him.  He became irritated and beat her. Because of the matrimonial conflicts, she was afraid of her husband.  Her in-law’s family also abused her because they are jealous that she earned more money than they did.  They also had argument over the money she remitted from Saudi Arabia.  They pulled her hair and assaulted her.  Her husband also took away her son from her parents.

The Director’s Decision

14.  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.  persecution with 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 under RC”)

15.  By Notice of Decision dated 6 September 2017, the Director refused her application for the reason that her claim was not substantiated.

The Board’s Decision

16.  The applicant appealed to the Board and she attended before the Adjudicator on 15 March 2018.

17.  By Decision dated 13 June 2018 (“the Board Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

18.  Having considered her evidence at the hearing and compared her evidence that she had given to the Director, the Board found that it accepted the applicant was subjected to domestic violence from her husband and his family on a number of occasions [59]. However, such acts were devoid of state involvement [75], and therefore not within the context of “torture” under section 37U(1) of the Ordinance. It also found that state protection should be available to her [73]; that the ground of torture was not substantiated [78]. As to BOR 3 risk, the Board found that her fear of future acts was remote and not a real risk [85]; that state protection should be available [87]. As to Prosecution risk under RC, the Board did not accept there is real risk that she will be subjected to such risk if she returns to Bangladesh [96]. Finally, as to BOR 2 risk, the Board simply found that she is not subjected to such risk as she was not charged with any criminal charges [99].

Application for leave to apply for judicial review

19.  By Form 86 dated 20 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

20.  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:

a.  BOR 2 risk was determined without screening process for her;

b.  the hearing bundle was delivered to her shortly before the appeal hearing and she did not have sufficient time to prepare for the hearing;

c.  the hearing bundle was in English, which she had difficulty in understanding; but she was not provided with the service of an interpreter;

d.  she was not legally represented for the appeal before the Board;

e.  the Adjudicator had relied upon hearsay and outdated material in relation to the Country of Origin Information;

f.  both the Director and the Adjudicator are ignorant of the situation in Bangladesh.

DISCUSSION

The Board’s Decision

21.  The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. She considered that she had had a fairing hearing before the Board.  She understood their respective Decisions.

22.  It is obvious that the Board accepted her complaints that she was subjected to domestic violence by her husband and his family. However, the Board found that such acts did not fall within the context of the relevant statutory provisions and Convention. The Board was perfectly entitled to make such findings. However, I shall deal with the applicant’s grounds above.

23.  Ground (1) fails because this is not the fact of the case. The Director had made the assessment of BOR 2 risk after the screening process as can be seen from the Director’s Decision.

24.  Grounds (2) and (3) are inconsistent with what the applicant said in court. They fail.

25.  Ground (4) fails as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that as the applicant had been legally represented, she does not have the absolute right to free legal representation at every stage of the proceedings. [22]

26.  Grounds (5) and (6) are bare allegations without any evidence to support them.  They fail.

27.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review. Accordingly, 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