AKTER SUNTANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 975/2019

[2023] HKCFI 2486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 975 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed and the applicant appeared before the Court on 6 February 2023.

The applicant

3.  The applicant is a national of Bangladesh.  She last entered Hong Kong as a foreign domestic helper on 10 March 2015 and was permitted to stay until 10 March 2017.  On 18 March 2015, her employment contract was prematurely terminated and she was allowed to stay as a visitor until 1 April 2015.  She did not depart and had overstayed since 2 April 2015.  On 11 May 2017, she surrendered to the Immigration Department.  On 11 August 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Faroque, who was one of the leaders of the Bandlesh Chhatra League (“BCL”) and the Jubo League (“JL”), because she belonged to the Jatiotabadi Chhatra Dal (“JCD”), the student wing of the Bangladesh Nationalist Party (“BNP”).  She also feared that she would be harmed or killed by the BCL and the JL due to her previous involvements in the JCD and BNP.

4.  According to the applicant, she attended the Shibpur Government Shahid Ashad college in 2009 and joined the JCD as a general member.  Her duties included assisting the JCD in recruiting new members in the college.  The JCD’s main opposition was the AL’s student wings, the BCL and JL, to which her husband Faroque belonged.  The incidents and harassments that led to the applicant’s claimed fear of harm could be summarized as follows.

5.  On 30 May 2010, when the applicant attended a mass gathering to mourn the death of the then BNP’s president, she and other attendees were attacked by Faroque and more than 200 supporters of BCL and JL with sharp weapons.  The applicant sustained swellings on the head and also chopped wounds.  Later, in a mass gathering held on 28 July 2010, Faroque and around 300 or 400 supporters also launched another attack, during which the applicant was again attacked and one of her teeth was knocked out.  She also had abrasions, swellings and open wounds all over her body.  In both incidents, the applicant’s complaints to the police were of no avail. 

6.  A few days later, the applicant was approached and threatened by Faroque as he knew that the applicant attempted to report to the police.  In around August 2010, he threatened the applicant to quit the JCD and marry him.  The next year, the applicant suspended her activities with the JCD in preparation for her examinations.  During this period, whenever Faroque encountered her in campus, he would reinforce his demand for her to marry him with threats or abusive languages.  After the applicant’s examinations, she resumed activities in the JCD.  One day, Faroque approached her for the marriage again.  Met with the applicant’s refusal, Faroque threatened to kill her. 

7.  In the end of 2011, the applicant left college and began working for the BNP.  One day in around April 2012, the applicant was kidnaped and drugged by Faroque.  She was also raped by him.  Again, when she reported to the police, the police refused to register her case based on lack of evidence.  A few months later, the applicant found out she was pregnant with Faroque’s child. As a result, she had no option but to marry him. 

8.  After the marriage, the applicant was prohibited from participating in any activities with the BNP.  Meanwhile, Faroque also demanded 5 million Bangladesh Taka from her as dowry.  The applicant could not satisfy this request and he had then become physically and mentally abusive towards her.  At the applicant’s 8^th month pregnancy, Faroque kicked her hard in the stomach, leading to the premature birth of their child.  The applicant decided to move to live with her parents after giving birth.  Six months later, Faroque started to visit the applicant’s parents frequently and demanded for the dowry.  He also damaged her parents’ properties and took their cows. Nevertheless, Faroque did not physically hurt the applicant and her family members. 

9.  In early 2014, the applicant’s father sold a piece of his lands and gave Faroque some money as dowry.  However, Faroque was not satisfied with the amount and continued to harass the applicant and her family.  Desperate to escape from him, the applicant started to work overseas.  While the applicant was away, Faroque continued to harass her parents.  He also attempted to kidnap their son, which was prevented by the villagers.  The man who was sent by Faroque to execute the kidnap plan was caught by the villagers and he agreed to testify against Faroque.  As Faroque was still looking for her and the supporters from BCL and JL also threatened her, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 8 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) considering all the relevant circumstances, it was not accepted that the applicant’s claimed risk of harm was real or foreseeable [14]-[16]; (ii) state protection would be available to her [17]; and (iii) internal relocation was a viable option [18].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  On 27 November 2018, the Board conducted an oral hearing for her appeal, during which she testified [39].

13.  The Board recapped the applicant’s claim and considered her oral testimonies [8]-[68].  It noted that the applicant clarified that her fear of harm was mainly from her husband and had nothing to do with politics [68].

14.  Having considered the evidence, the Board found that the applicant was not a truthful witness [71].  In particular, the Board noticed that the applicant’s evidence about her involvement in the political activities lacked details, generalized and vague [71].  It also found that the applicant’s evidence was inconsistent as to the purposes of attending the mass gatherings [73]. Further, it noted that the applicant conflated the two attacks [74].  While the Board accepted that the lapse of time might cause memory loss, it refused to accept that the applicant was politically active as claimed or sustained any injuries during the alleged political gatherings [76].

15.  Meanwhile, the Board found that the applicant provided contradictory accounts in relation to the circumstances leading to the marriage with Faroque [77]-[78].  When asked to explain the inconsistencies, the applicant stated that her oral evidence was a lie and that her evidence in the written statements were true [79].  Another significant arose from the applicant’s statement about the false case filed against her father.  In her written statement to the Board, the applicant claimed that Faroque filed a false case against her father for kidnapping their child.  However, she testified before the Board that this piece of evidence was untrue as someone else prepared the written statement for her [80]. 

16.  In these premises, the Board concluded that the applicant’s credibility was seriously in doubt and found that her evidence was unreliable.  On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 10 April 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In her affirmation in support of her application and an attachment to Form 86, the applicant set out the grounds, which I shall summarize below.

(1)   Misdirection in law: The adjudicator misdirected himself on the law by taking into account the she had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future.

(2)   Procedural impropriety/unfairness: She was not legally represented and the hearing bundle was given to her shortly before the hearing before the Board. Therefore, she was unable to make full preparation for the hearing. She was confused at the hearing.However, she had answered all the questions the Board put to her.The Board relied upon the source of news which is not officially recognized or it is simply hearsay. It had relied on some cases which are fairly outdated, making groundless speculation that it is safe for her to return to her country of origin. The Board failed to call for psychological and psychiatric evaluations and reports. It has also applied the incorrect standard of proof.

(3)   Irrationality: The Board had failed to find whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. The Board had taken into account and put weight on irrelevant consideration or consideration that were incorrect. The Board had made a wrong decision as the adjudicator had not gone to her country to understand her situation there. If she had not come to Hong Kong, she would have been killed by her enemies.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she was free to express herself before the Board. She further said that she could not say that the Board was wrong and maybe she was wrong. She wants the Court to look at the case again.

21.  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.”

22.  As to the grounds stated in paragraph 18, they are clearly copied from templates of other cases not relevant to the applicant’s case. She also admitted to the Board that someone else prepared the statement for her [80]. The description of her gender is wrong. She admitted to the Board that her fear of harm was mainly from her husband and had nothing to do with politics [68]. The fact that she was able to answer all the questions from the Board demonstrates that she understood what was happening at the hearing before the Board. She did not complain to the Board of insufficient time or lack of legal representation for her preparation of her case before the Board. There is no evidence to show that the Board had made misdirections in law. Nor was there any evidence to show that there were procedural irregularities or irrationality as described above. She had not requested psychological or psychiatric examination before the Board. It is unnecessary for the adjudicator to go to Bangladesh to understand the situation there as the adjudicator can rely upon the COI. The other grounds are simply her general assertions or opinions without any evidence in support.

23.  The applicant has raised no valid ground to challenge the Board’s Decision. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

25.  I refuse to grant leave to the applicant 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