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HCAL 1188/2018
[2021] HKCFI 479
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1188 OF 2018
BETWEEN
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Khatun Mst Mukti |
Applicant |
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and |
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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. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
2. The applicant applies for leave to apply for judicial review of the Decision dated 22 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
3. 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.
The applicant
4. The applicant a Bangladeshi national. She arrived in Hong Kong on 2 August 2015 as a domestic helper. Her employment was prematurely terminated. She overstayed and surrendered to the Immigration Department on 31 March 2016.
5. The applicant claimed that, if refouled, she would be harmed or killed by the local Awami League (“AL”) cadres as she and her parents were supporters of the Bangladesh Nationalist Party (“BNP”) and the creditor Abdul Kalam, who claimed to have lent money to her father, but demanded her to repay the loan.
6. Briefly, in late 2009, the AL people targeted her father to join AL. Her father refused. The AL gangsters demanded money from her father. They also demanded her father to sell his piece of land at a below market price. Her father yielded. Although her father reported the matter to police, they did not assist him because they sided with the AL. Her father hid himself. The AL gangsters kidnapped her mother and demand ransom. Her father borrowed money to pay the ransom. But the AL gangsters killed her mother after taking the money. In June 2012, Abdul Kalam demanded her to repay her father’s loan. The applicant hid herself, living in her friends’ premises. In 2015, the applicant came to Hong Kong to work as a domestic helper. For details, see §6 of the Director’s Decision or §7 of the Board’s Decision.
The Director’s Decision
7. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C 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 26 April 2017 (“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 real and substantial risk of her being harmed or killed by the AL people or her father’s money lender upon her return to Bangladesh. The Director found that the level of risk of harm if she returned to Bangladesh was low [21 & 22]; that the state was not involved in these incidents and state protection was available to her [23] and that internal relocation was an option open to her [27].
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 1 February 2018.
10. The Board rejected her appeal and confirmed the Director’s Decisions.
11. The Board bore in mind the relevant legal principles in relation to assessment of evidence, considered the applicant’s evidence and found:
(1) the applicant’s evidence could not be relied upon and she was not a witness of truth [74-78];
(2) her evidence on her mother’s death, her father’s kidnapping (evidence at the hearing, but not before the Director), she was at risk of the AL people or the loan shark [79] had to be rejected;
(3) she failed to discharge the burden of proving her case for international protection [80]; and
(4) for those reasons above, her claim under the four risks above were dismissed.
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 25 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation:
“seek judicial review against Torture Claim Appeal Board. Exhibit M as attached “Documents” 1 to 20 pages”
13. Those 20-page document is the Board’s Decision.
DISCUSSION
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim. See paragraph 11 above.
15. 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.”
16. The applicant’s grounds in support of her application are without any evidence or specifics.
17. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
19. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 1st day of March 2021
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(M. O. WONG)(Ms) |
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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 1 March 2021
Khatun Mst Mukti
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 1 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7083/17/5/89/B833
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 12519/16 (Formerly RBCZ 2973/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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