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HCAL 739/2019
[2023] HKCFI 1006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 739 of 2019
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Begum Shuli |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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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. The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The application was set down to be heard on 19 October 2022. However, the applicant was absent without prior notice to the Court and her application is dealt with on paper.
3. 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.
The applicant
4. The applicant is a national of Bangladesh. She entered Hong Kong on 20 April 2016 and was permitted to remain as a foreign domestic helper until 20 April 2018, or two weeks after the termination of the contract, whichever was earlier. Her employment contract was prematurely terminated on 28 April 2016 and she was required to leave on or before 12 May 2016. She did not depart and had overstayed since then. On 25 September 2017, she was arrested by the police for overstaying. On 20 and 24 November 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by members of the Awami League (“AL”).
5. According to the applicant, she was a journalist from 2012 to 2015. As she supported the Bangladesh Nationalist Party (“BNP”), she mostly reported the notorious news about the AL. In 2015, the AL members called her boss, asking him to stop writing about the AL. Her boss told them that the applicant possessed evidence against them in relation to their illegal women trafficking and drug deals. A few days later in August 2015, the AL members visited their office. They beat her boss to death and also raped her. The applicant was hospitalized for four days. Thereafter, the AL members visited the applicant’s house. Not only did they assault her father and threatened her daughter, they also framed her father for a false case, leading to her father’s arrest. After her father was released on bail, she escaped to Dhaka to stay with her aunt. In January 2016, the AL got the information from her daughter that the evidence was kept in her aunt’s place. They took the documents and killed her aunt. The subsequent report to the police was again of no avail. The applicant also feared that, since one of her rapists was arrested, the AL people would kill her as she might need to give evidence if returned. She also feared that she would be discriminated as a rape victim. As a result, the applicant sought protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 18 April 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
6. 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”).
7. By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from the AL was assessed to be low. In elaboration, the Director found that (i) since the AL already obtained the evidence, they had no reason to continue searching the applicant [13]; (ii) on her own evidence, while she was away from her locality, she did not encounter the AL [14]; (iii) state protection would be available to her [15]-[17]; and (iv) internal relocation was a viable option [18].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board conducted an oral hearing for her appeal, during which she only stated that she would leave Hong Kong if BNP was in power but the reality was that AL was still the ruling party [21].
9. Having considered the evidence, the Board found that her claim was not substantiated. In particular, the Board noted that the applicant was only raped once. While it agreed that this constituted pain and suffering, it noted that the AL members left after the applicant told them the evidence was not with her. Meanwhile, in January 2016, the AL members came to her aunt’s house and took the evidence. They did not attempt to locate the applicant, which meant that they only targeted the evidence. It further considered that the applicant was not harmed afterwards and she was only verbally threatened. In addition, the applicant’s assertion that the police were corrupted and irresponsible was proven to be wrong since the police had arrested one of her rapists who was also the murderer of her aunt. Besides, the AL did not act in any official capacity [22]. The Board also noticed that, on the applicant’s own confession, she came to Hong Kong not for protection but for employment [24].
10. The Board also took into account the country of origin information which showed that state protection would be available to her [29]-[31]. In any event, internal relocation was a viable option as it was only her own speculation that her name was punished as a rape victim and that her reputation was damaged. Nevertheless, there were organizations that would assist her in this regard [45]-[50].
11. In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.
13. In her affirmation in support of her application, the applicant reiterated her factual story in support of her application. She further said that the Board’s Decision is unfair and unreasonable as the Board did not take in consideration her situation.
DISCUSSION
14. 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).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
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. The grounds as set out in paragraph 13 above do not assist her application as they are her personal opinions without any evidence in support. The Board had assessed her situations and, for the reasons given, found that she did have real risk of being harmed or killed upon her return to her country.
18. There is no valid ground to challenge the Board’s Decision.
19. 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.
20. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 20th day of April 2023
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(M.O. WONG)(Ms)
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 20/4/2023
Begum Shuli
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 20/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11369/18/4/379/B1224
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 933/18 (formerly RBCZ/11804/17)(PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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