AKTAR MST RUMA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2452/2018

[2020] HKCFI 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2452 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.  Leave was granted to the applicant to amend Form 86 by deleting the Director from the respondent column to be added in the interested party column and deleting the Board from the column for the interested party.

THE APPLICATION

2.  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 dated 22 October 2018 (“the Board’s Decision”) with the Director of Immigration (“the Director”) as interested party.

The applicant

3.  The applicant is a Bangladeshi national. She came to Hong Kong as a domestic helper. Her employment contract terminated prematurely, but she overstayed. On 22 March 2017, she was arrested by Immigration Officers. On 24 March 2017, she was convicted of breach of condition of stay and was sentenced to 6 weeks’ imprisonment. She lodged a non‑refoulement claim on 27 March 2017.

4.  In support of her claim, she claimed that if refouled, she would be harmed or killed by her brothers-in-law over a dispute of land. Her husband and the other two brothers-in-law, Shahabuddin and Mostafa inherited one piece of land respectively from their late father. The other two brothers intended to take over her husband’s piece of land. They belonged to the Awami League. They told her husband either he surrendered his piece of land to them or he converted into Awamni League. Her husband refused.  The following events led her to leave her country.

a.     During the period of 2010 to 2012, the two brothers assaulted her husband on many occasions by punching, kicking and slapping him. Mostafa’s wife also assaulted her.

b.     In 2014, Mostafa drove a small car and damaged their gate and pump.

c.     After two weeks, her daughter was kidnapped by Mastafa’s son for a short period. She was brought back to the family by Mastafa’s son.

d.     After a week, Mostafa threatened to kill her husband and the family.

e.     After 2-3 days, her husband was framed up by Mostafa with a bag of dangerous drugs. He was arrested, convicted and sentenced to 8 years’ imprisonment.

f.     Whilst her husband was in prison, the brothers tried to evict the family by throwing stones at her house and threatened that they would harm the children.

g.     The family moved to her father’s house. But the brothers threatened her father not to accommodate them.

h.     She had to get training for a domestic helper in Hong Kong. On 7 March 2016, she left for Hong Kong.

The Director’s Decision

5.  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”).

6.  By Notice of Decision dated 31 January 2018, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 10 September 2018.

8.  By Decision dated 5 November 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion that there was not a real risk the applicant would face any of the proscribed forms of harm should she returned to Bangladesh. Below are the Board’s findings.

a.     Bearing in mind the judicial guidance for assessment of evidence for this type of cases that the Board must adopt a reasonable approach and in case of doubt, the benefit should be given to the applicant as set down in SM Iran v Secretary of State for the Home Department  [2005] UKAIT 116; MA (Somalia) v Secretary of State for the Home Department  [2010] UKSC 49, the Board found her evidence inconsistent and without explanation, making her assertions not making sense or were implausible [64 & 65].

b.     She had fabricated her account of key events [69].

c.     Although the Board accepted that she might have been sexually molested by her brothers-in-law and she was exposed to stigma, it did not accept that she would face a real or substantial risk or a real risk of the Prosecution risk [86], the Torture risk [96], the BOR 3 risk [102] or the BOR 2 risk [105]. Also, relocation was an option open to her [77].

10.  In her Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application she relied upon the ground that the hearing bundle was given to her shortly before the hearing without translation. She did not have sufficient time to prepare her case. She also relied upon the grounds attached to Form 86 below.

1.     There was no legal representation for her.

2.     The Board’s Decision was unfair.

3.     The approach adopted by the Board for assessment of evidence was not keeping high standards of fairness.

DISCUSSION

12.  The applicant appeared before me. She confirmed that she was free to express herself before the immigration officer and before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

13.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

14.  In Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board erred in the finding of the facts or in the application of the laws to her case.

16.  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. Ground (1) fails.

17.  Grounds (2) and (3) fail as they are her opinions without any evidence or facts in support of them.

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

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. 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