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HCAL1722/2018
[2019] HKCFI 1564
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1722 of 2018
BETWEEN
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KAMRUNNAHAR Mst |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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The 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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.
The applicant
2. The applicant is a Bangladeshi national. She arrived in Hong Kong on 23 July 2014 as a domestic helper and was allowed to stay until 23 July 2016. Her employment contract was prematurely terminated and she was required to depart by 6 September 2014. She overstayed without the Director’s permission. She surrendered to the Immigration Department on 5 November 2015. She lodged a non-refoulement claim on 29 November 2016.
3. In her statements given to the Director and the Board, she claimed that because her father was unable to pay the dowry for her marriage, her husband assaulted her shortly after the marriage. He kicked her in her abdomen when she was pregnant. He was an alcoholic and did not work. He continued to attack her after the birth of their daughter. She stayed with him for a short time and moved back to live with her parents. She went to Dhaka to work as a domestic helper for two years. Her husband was looking for her at her family. Upon her friend’s advice, she came to Hong Kong in 2014.
The Director’s Decision
4. The Director considered his 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”).
5. By Notice of Decision dated 24 November 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that it was unsubstantiated.
The Board
6. The applicant appealed to the Board and attended a hearing before the Adjudicator on 10 May 2018.
7. By Decision dated 10 August 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.
8. The Board proceeded to consider the applicant’s case and found that it accepted that the applicant was subjected to domestic violence from her husband and his family on a number of occasions during the period that she lived with them [45]; that she was subjected to physical and psychological violence in that period and that it was her desire to leave her husband and his family that was the main motivation to leave Bangladesh and come to live and work in Hong Kong [47]. It was on these bases, the Board considered her claim.
9. The Board, having carefully considered the relevant legal principles and the facts accepted, finally came to the decision that neither the Bangladeshi police and the state were involved in the incidents [61 & 62]; that the harm that the applicant feared from her husband would not come within the definition of torture under section 37U (1) of the Ordinance [63]; that there was state protection for the applicant in Bangladesh [75]; that relocation was also an available option for the applicant [79]; that the Board did not accept that the applicant had a well-founded fear for persecution [87]; and that she would be subjected to the BOR 2 risk [88 & 89].
Application for leave to apply for judicial review
10. In her Form 86 dated 23 August 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.
11. In her affirmation in support of her application dated 23 August 2018, the applicant relied upon the following grounds:
(1) the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;
(2) the contents of the hearing bundle were in English and she was unable to obtain interpreter service;
(3) she was confused at the appeal hearing;
(4) the Adjudicator had relied upon hearsay information and outdated materials in relation to the Country of Origin Information (COI).
DISCUSSION
The Board’s Decision
12. The applicant appeared before me. She confirmed that she was able to speak freely before the Immigration officer and the Adjudicator was also fair to her. The Director’s Decision was explained to her by the duty lawyer, and her friend had explained the hearing bundle to her before the appeal hearing.
13. I put the Board’s findings above to her for her comments. She said that she had no money to pay the police officers or for relocation.
14. Grounds (1) (2) and (3) fail as they are inconsistent with what she said before this Court.
15. Ground (4) does not sustain because it is only her opinion without any evidence in support of it.
16. The Board had found the facts and applied the appropriate legal principles and the relevant Conventions to her case. There is nothing amiss in the analysis as it is clearly a family matter which should be handled by the applicant’s country. The Country of Origin Information clearly states that Bangladesh has available remedies to redress her problems.
17. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
18. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for intended judicial review. Accordingly, I dismiss her application.
Dated the 20th day of June 2019
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(Henry Ng)
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 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 20/06/2019
KAMRUNNAHAR Mst
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 20/06/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9374/17/12/41/B1073
The Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2337/17 (formerly RBCZ 10381/17)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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