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HCAL666/2018
[2019] HKCFI 372
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 666 of 2018
BETWEEN
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Moni Rohima Khatun |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. She is now aged 38 (DOB: 16 April 1980).
2. The Applicant claimed she would be harmed or killed by her ex-husband Shamsun, Abul (Shamsun’s brother), the Hindu community and the Muslim community in her village.
3. The Applicant said she married Shamsun in 1995. Shamsun had a land dispute with his brother Abul. In 2002, Shamsun assaulted Abul. When Abul could not locate Shamsun for revenge, he vented his anger on the Applicant and had her beaten up. The Applicant took out a case in court but the proceedings were halted. The land dispute between Shamsun and Abul was later settled. However, Abul still threatened to kill the Applicant.
4. In 2003, the Applicant was elected as a member of the Union Council of her district. Shamsun objected to her work. He assaulted her regularly.
5. The Applicant befriended a co-worker Babul in the Union Council. Others gossiped the two had an affair.
6. In 2007, the Applicant could not bear Shamsun any longer. She went back to live with her parents. Shamsun found her and assaulted her.
7. The Applicant soon divorced Shamsun. Shamsun attacked the Applicant's family members. He said he would not leave the Applicant in peace.
8. In February 2008, the Applicant's father was knocked down by a motorcycle driven by a man called Liton. Liton’s father confessed his son did that for Shamsun. The Applicant's father made no report to the authorities because Liton’s father was his good friend.
9. In August 2008, the Applicant moved to live with her sister in another village. Later, Babul arranged for her to live in Dhaka. She lived there for some months before returning home in April 2009 when her father became very ill.
10. The Applicant was not well received by her mother and step-brothers because of the rumoured affair between the Applicant and Babul, who was a Hindu. The Applicant's family and her villagers were Muslims. They did not approve the Applicant's divorce with Shamsun.
11. In May 2009, Babul arranged for the Applicant to live away from home in another village. One day, some villagers came to make accusations against her and attacked her. The police took everyone back to the police station. Babul’s brother later bailed them out. The Applicant was asked to leave Babul. She refused and was assaulted by Babul’s family. They even tried to drown her in a pond. The Applicant was rescued somehow.
12. The Applicant's villagers were Muslims. They were furious that the Applicant was attacked by Babul’s Hindu family. They demanded justice. The sub-district chairman held a meeting later. The Applicant and Babul were told to separate but they did not. They even tried to get married before a magistrate. The magistrate, however, refused their application.
13. Because of the Applicant, Babul had problems with his family. He also felt pressure from the Hindu and Muslim communities. His relationship with the Applicant deteriorated. The Applicant struggled to cope with the broken relationship. She also faced criticism from the Hindu and Muslim communities.
14. The Applicant tried to register her notary marriage certificate with the Kazi (a registrar) but the official would not do so.
15. The Applicant felt pressures. She left Bangladesh in May 2014 to work in southeast Asia. The arrangement was not successful and she soon returned to Dhaka to get back to Babul.
16. One day in 2015, the Applicant and Babul were confronted by some friends of Shamsun’s. The Applicant said those men were terrorists and extortionists. Some took Babul away while the others kidnapped the Applicant. They attacked her and threatened to kill her on the next day. However, the Applicant was later released. Some people helped her to get treatment in Dhaka.
17. The Applicant learnt Babul had escaped to India because he had problems with the Muslim community.
18. The Applicant got help from a friend of Babul’s. He arranged for her to receive vocational training as domestic helper. The Applicant finally left Dhaka on 18 March 2015 to work as domestic helper in Hong Kong. However, she was dismissed on 3 June 2015. She dared not go back to Bangladesh. She overstayed in Hong Kong from 18 June 2015 and surrendered to the Immigration Department on 6 July 2015. The Applicant raised a non-refoulement claim some months later on 17 March 2016.
19. The Applicant said there were threats against her in Bangladesh because of her mixed-religion relationship with Babul. The police were corrupt and would not help her. She had never made any report to the police despite Shamsun tried to kill her father and actually abducted her younger sister. The Applicant believed her younger sister had been killed.
20. The Applicant said she had no means to relocate herself in Bangladesh. She feared her enemies would find her.
21. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
22. On 18 April 2018, the Applicant applied for leave for judicial review.
Timeline
23. Things happened in this order: –
| 2015-3-19 |
The Applicant entered Hong Kong to work as domestic helper. Her employment contract was terminated prematurely on 3 June 2015. |
| 2015-6-18 |
The Applicant began overstaying in Hong Kong. |
| 2015-7-6 |
The Applicant surrendered to the Immigration Department. |
| 2016-3-17 |
The Applicant raised a non-refoulement claim. |
| 2017-4-28 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2017-11-15 |
The Applicant appeared before the Board for appeal. |
| 2018-3-29 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-18 |
The Applicant applied for leave for judicial review. |
Respondents
24. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
25. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
26. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
27. In his decision dated 28 April 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. He refused the Applicant’s claim with respect to all the four applicable grounds
The Board's decision
28. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 15 November 2017. The Applicant told the Adjudicator that she had mental problems and could not remember things. She adopted her previous statements and refused to answer questions.
29. The Adjudicator found there were a number of unsatisfactory features that required explanation, which was not forthcoming since the Applicant chose not to answer questions.[6] Anyway, according to the Applicant, Babul had now gone out of her life. The Adjudicator considered there would not be problems for her anymore.[7]
30. The Adjudicator also did not accept Abul (Shamsun’s brother) threatened to kill the Applicant.
31. The Adjudicator found that there was no state acquiescence of any kind. The Applicant simply had not reported her alleged fears to the Bangladesh police.
32. The Adjudicator found there was no real torture risk, persecution risk, BOR2 risk or BOR3 risk in the Applicant's case.[8] He further considered that if there was really any risk, internal relocation was viable.[9]
33. On 29 March 2018, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
34. In her affirmation, the Applicant complained the Director and the Adjudicator failed to consider state acquiescence and state protection; failed to consider the psychological impact of her complained threats; failed to conduct sufficient inquiry and critical analysis of relevant country-of-origin information ("COI"); failed to provide reasons for assessment of BOR3 risk; failed to explain why certain COI was preferred and cherry-picked information.
Court hearing
35. The hearing took place on 18 July 2018 and 30 July 2018. A Bengali interpreter provided assistance in court.
36. The Applicant said a ‘friend’s friend’ helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. She had nothing to add but just repeated her claim of danger.
37. The Applicant confirmed she had summited all the proofs she had to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[10] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [11]
40. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 26 above, I shall deal with her application in relation to the Board's decision only because the Director's decision had already been taken on appeal to the Board for rehearing.
41. The Applicant complained the Adjudicator failed to consider state acquiescence/state protection and failed to consider the psychological impact of her complained threats.
42. The Adjudicator was cognizant of the Applicant's alleged fears. However, he considered Babul had already gone out of the Applicant's life so there would not be further problems for the Applicant due to her troubled relationship with Babul. The Adjudicator also did not accept Abul (Shamsun’s brother) threatened to kill the Applicant. He concluded there was no torture risk, persecution risk, BOR2 risk or BOR3 risk in the Applicant's case. Thus, state acquiescence and state protection were not real issues. In any event, the Adjudicator correctly found there was no question of state acquiescence. The Applicant simply had not reported her alleged fears to the Bangladesh police. There was no evidence that the Bangladesh authorities had known of her complained situation and acquiesced in it one way or the other.
43. The Applicant complained the Adjudicator failed to conduct sufficient inquiry and critical analysis of relevant country-of-origin information ("COI"). She also accused the Adjudicator cherry-picked information and failed to explain why certain COI was preferred against her claim.
44. The Adjudicator rightly pointed out that the current case could be decided without much reference to COI.[12] Anyway, he did refer to some COI.[13] The Adjudicator understood the deficiencies of the Bangladesh police and the difficulties of internal relocation for single women with no support networks. There was no evidence that he cherry-picked information. The Adjudicator need not state the mental process of his COI evaluation. His finding that internal relocation was viable was not irrational.
45. The Applicant complained the Adjudicator failed to provide reasons for his assessment of BOR3 risk.
46. The Adjudicator stated in his report clearly why he considered there was no risk of any kind that warranted non-refoulement protection. He also stated clearly that internal relocation was available to the Applicant in any event.
47. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
48. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.
Dated 21st day of February 2019
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(Alan Ngan)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 21/2/2019
Moni Rohima Khatun
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 21/2/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7166/17/5/172/B841
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1633/16 (formerly RBCZ 11287/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 71-84.
[7] Ibid., paras 85-86.
[8] Ibid., 87-101
[9] Ibid., paras 102-105.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
[12] Ibid., para 69.
[13] Ibid., paras 69 and 104
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