AKHTER MST SHARMIN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2461/2018

[2020] HKCFI 1737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2461 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.  The applicant applies for leave to apply for judicial review of the Decision dated 25 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant was absent on the hearing day of her application on 25 April 2019 and her application was dismissed for want of prosecution. She took out a summons returnable on 26 June 2019 for appeal against the said Order out of time. However, she was also absent on the hearing day and her summons was dismissed for want of prosecution. By another summons dated 19 August 2019, she applied to set aside the ex parte Order dismissing her summons and for extension of time for her appeal.

3.  The applicant appeared before me and she explained that she did not receive the hearing notice for her application. In Re Abdus Salam [2019] HKCA 1091 at §22, the Court of Appeal held that her application should be considered on its merits. I therefore set aside the ex parte Order of dismissing her application. I shall now hear her application.

The applicant

4.  The applicant is a national of Bangladesh. She came to Hong Kong on 2 March 2016 as a domestic helper. Her contracted was terminated on 5 April 2016. She overstayed since 20 April 2016. On 24 May 2016, she surrendered to the Immigration Department. On 14 July 2016, she lodged a non-refoulement claim.

5.  In support of her claim, she said that if refouled, she would be harmed or killed by her enemies who were affiliated with the Awami League (“AL”) because of political dispute. The relevant events leading her to leave her country are set out below.

a.She married in 2008. Her husband’s family were supporters of the Bangladesh Nationalist Party (“BNP”), a rival party of AL.

b.One day in 2014, her husband, father-in-law and brother-in-law were attacked by the AL people whilst they were at a BNP meeting. All of them were injured. Her father-in-law reported to police, which made investigation into the matter.

c.In late August 2015, the AL people came to her home and damaged the roof. They destroyed part of the house and left.A few days later, they came again armed with weapons. They were fury with her father-in-law because he had reported to police and complained to BNP. They attacked them and slapped her daughter. She passed her daughter to her neighbour. The people set the house on fire. She was burnt on her feet and hands when she tried to grab some belongings from the house. She was also beaten on her back. She escaped and went to her parents’ home.

d.The next day, her neighbour told her that her father-in-law had been killed and her daughter was fine. She was unable to contact her husband and other family members. She dared not return to her house.

e.About one or two weeks later, her mother told her that Hong Kong was recruiting domestic helper. She then came to Hong Kong to work as a domestic helper.

The Director’s Decision

6.  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”).

7.  By Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  There was no likelihood that the risk of harm from the AL people as she perceived was real and foreseeable [10]; state protection was available [16] and internal relocation was open to her [17].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 12 June 2018.

9.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that she was not the target of the AL supporters and that she could relocate herself to other places. See paragraphs19 and 45.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 5 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  She relied upon the grounds below.

1.There was no legal representation or advice for her appeal.

2.The hearing bundle was given to her shortly before the appeal hearing without translation and she did not understand it.

3.The Board relied upon not reliable, outdated or hearsay materials.

4.The BOR 2 risk was assessed without screening.

5.Its decision was wrong.

DISCUSSION

13.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

14.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage.

15.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …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.”

17.  It is clear that Ground (1) fails in light of the authority above; Ground (2) is inconsistent with what she said in court; Ground (3) is her opinion without evidence or particulars in support of it; Ground (4) is not true and Ground (5) is only her personal opinion.

18.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

19.  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.

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