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HCAL117/2018
[2018] HKCFI 2338
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 117 of 2018
BETWEEN
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Begum Sumi |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. She is now aged 30 (DOB: 17 July 1988).
2. The Applicant claimed she would be killed by her creditors in Bangladesh.
3. The Applicant said she and her husband wanted to start a business in Dhaka. The borrowed 1.5 million Bangladesh taka from a loan shark (“BM”) in July/August 2010.
4. One odd month later, the couple borrowed one million Bangladesh taka from another loan shark (“KM”).
5. It was said both loan sharks were affiliated with the senior members of the Awami League (“AL”), including a member of the Parliament called Asanullah Master.
6. In late 2011, one of the Applicant's customers closed down. It owed the Applicant’s business 2.5 million Bangladesh taka. The Applicant’s business had to be halted and she had to sell the machinery to raise money to repay the loan sharks.
7. In 2012, the Applicant and her husband could not pay further. The loan sharks gave them three months’ time to meet their demand. After the deadline, KM and his associates came to demand payment and assaulted the couple. They threatened to kill the Applicant and her husband if they failed to repay. The couple dared not report the matter to the police because they thought the police would only help the loan sharks.
8. About 10 days later, the other loan shark BM also came to demand payment. He too threatened to kill the couple if they could not pay up.
9. The Applicant and her husband fled for their safety. The husband took the children to his relatives. The Applicant went to Keraniganj to receive training in order to go overseas to work as domestic helper.
10. The Applicant was about to come to work in Hong Kong in Oct 2013 when she lost contact with her husband. She learnt from her old neighbours that the loan sharks had burned down their house. Those people also threatened to kill the Applicant’s family should they find them.
11. In October 2013, the Applicant came to Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in March 2014. She then went to Macau for five months before coming back to Hong Kong to work under a different domestic helper contract. However, that contract was also prematurely terminated on 3 September 2014. The Applicant was required to leave Hong Kong after two weeks. She, however, overstayed from 18 September 2014. The Applicant was arrested by the police six months later on 18 March 2015 for overstaying and illegal working. She claimed non-refoulement protection in April 2015.
12. The Applicant claimed she had not contacted her family since leaving Bangladesh in October 2013. She remarried in Hong Kong in April 2016.
13. The Applicant said the Bangladesh police were unable to protect her. Loan disputes would be regarded as private matters. The Applicant also said she had no money to bribe the police and she feared she would be raped or imprisoned if she got caught in Bangladesh.
14. The Applicant did not think internal relocation was viable. She claimed the loan sharks had extensive networks and could find her anywhere in the country. She also alleged she had no family support or means to start a new life in Bangladesh.
15. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
16. On 25 January 2018, the Applicant applied for judicial review.
Timeline
17. Things happened in this order: –
| Oct 2013 |
The Applicant left Bangladesh and came to Hong Kong to work as domestic helper. |
| Mar 2014 |
The Applicant’s employment contract was terminated prematurely. She left Hong Kong for Macau and stayed there for five months. |
| 2014-8-20 |
The Applicant came to Hong Kong again to work under a different domestic helper contract. |
| 2014-9-3 |
The Applicant's second employment contract was also terminated prematurely. She was allowed to stay until 17 September 2014. |
| 2014-9-18 |
The Applicant began overstaying in Hong Kong. |
| 2015-3-18 |
The Applicant was arrested by the police for overstaying and illegal working. |
| April 2015 |
The Applicant claimed non-refoulement protection. |
| 2017-5-31 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR3 risk and (iv) BOR2 risk. [“the Director’s decision”] |
| 2017-11-24 |
The Applicant appeared before the Board for appeal. |
| 2018-1-16 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-1-25 |
The Applicant applied for leave for judicial review. |
Respondents
18. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
19. In Form 86, the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
20. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
21. In his decision dated 31 May 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed her on 24 November 2017.
23. The Adjudicator found the Applicant was not a forthright witness. She was deliberately vague and often evasive. There were scant details in her allegations. There were many material inconsistencies and contradictions in the Applicant’s claim which she could not explain. There was also late disclosure of material facts. The Adjudicator found the Applicant invented information to bolster her claim. He concluded the Applicant was incredible and had fabricated her claim.[6]
24. The Adjudicator found the Applicant failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.[7]
Grounds of judicial review
25. In Form 86, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered irrational or unreasonable decisions; failed to consider she was a self-represented claimant.
26. The Applicant complained that she was only given the appeal hearing bundle on 17 November 2017. There was no sufficient time for her to prepare for the appeal hearing scheduled for 24 November 2017. She accused the Adjudicator failed to make appropriate arrangement in relation to the service of the appeal bundle. She further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
27. The Applicant also complained the Director only considered paper information and did not understand the real situation in her case. She further accused the Director of undue delay in that the Director rendered his decision on 31 May 2017. It was two years after she had lodged her claim in April 2015. The Applicant said in her affirmation that had prejudiced her retrieving proof for her claim.
28. The Applicant said the Director and the Adjudicator lacked credible information to decide it was safe for her to return to Bangladesh.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [9].
31. The Applicant mentioned she was a self-represented claimant. She had been represented by the Duty Lawyer Service up to the Director's decision dated 31May 2017.
32. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
33. The Applicant complained she received the appeal bundle only shortly before the Board hearing.
34. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
35. The Applicant said the appeal bundle was served on her on 17 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 24 November 2017. Thus, the bundle was served on the Applicant in time.
36. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
37. The Applicant found a friend to prepare Form 86 and her affirmation for the current application. Apparently, she could find someone to assist her with translation/interpretation and handling English documents at all material times, including preparing for appeal to the Board. She had much exaggerated her language problem.
38. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
39. The Applicant said she answered all the questions in the Board hearing.[13] That would mean she knew well what was asked and how to answer. She was not confused.
40. The Applicant said the Adjudicator lacked credible information to decide it was safe for her to return to Bangladesh. I do not agree. Nevertheless, it was not a real issue because the Adjudicator actually had found the Applicant failed to establish any risk that warranted non-refoulement protection.
41. The Applicant also made complaints against the Director. Among others, she accused the Director of undue delay in that the Director rendered his decision on 31 May 2017. She said the delay had prejudiced her getting proof from Bangladesh but she failed to state how. The Applicant's other complaints against the Director were also vague. Actually, I need not deal with such complaints (see paragraph 20 above).
42. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
43. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 29th day of October 2018
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(Alan Ngan)
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 his 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 29/10/2018
Begum Sumi
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 29/10/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7444/17/6/140/B864
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 646/17 (formerly RBCZ 11538/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 70-86.
[7] Ibid., paras 87-94.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[12] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[13] Form 86, page 5, first paragraph.
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