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HCAL 2049/2019
[2024] HKCFI 2768
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2049 OF 2019
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BETWEEN
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Akter Sonia |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
25 September 2024 |
| Date of Judgment: |
28 October 2024 |
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J U D G M E N T
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THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 11 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. She appeared before the Court on 25 September 2024.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 36, is a national of Bangladesh. She last entered Hong Kong to work as a foreign domestic helper (“FDH”) on 28 August 2014. Her employment contract was prematurely terminated on 24 September 2014 and she overstayed since 9 October 2014. The applicant was arrested by the police for overstaying on 21 January 2015 and she was sentenced to imprisonment of four weeks suspended for three years on 26 January 2015. The applicant made a non-refoulement claim on 3 March 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by a Faisal Ahmed (“Ahmed”) and other Awami League (“AL”) members because she supported Bangladesh Nationalist Party (“BNP”).
5. According to the applicant, she became a BNP member in around 2013. During a rally in February 2014, the applicant and other BNP members had an intense argument with Ahmed and other AL members. On 1 March 2014, the applicant narrowly escaped from a kidnap by people sent by Ahmed. She reported the matter to the police and then left to stay at her friend’s home in Dhaka for 1.5 months. Thereafter, the applicant stayed at the training centre of an employment agency for 3.5 months and eventually left Bangladesh for Hong Kong on 27 August 2014.
6. While in Hong Kong, the applicant maintained contact with her sisters and was told that AL members were still after her. The applicant was of the view that the police would not assist her because they only protect the interest of AL. She also considered internal relocation not viable because AL had a strong network in Bangladesh, so that she would be easily located anywhere within the country.
7. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 December 2017 (“the Director’s Decision”).
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
(a) 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”);
(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
(c) 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”); and
(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment by Ahmed and other AL members indicated a small future risk of harm upon her return to Bangladesh [12]; (ii) given the applicant’s grass-root participation in BNP, it is unlikely that she would be of adverse interest to the entire AL taking into account also the elapse of time [13]; (iii) state protection would be available [15]; (iv) internal relocation would be viable [14], [16] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17]-[21], Persecution risk [22]-[27] or Torture risk [28]-[30].
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 10 May 2019, the Board conducted an oral hearing.
11. The Board found the applicant’s evidence vague and the account of events she gave at the hearing was at significant variance to that given in her previous evidence [17]-[18]. The Board therefore attached no credence to the applicant’s claim that she entered Hong Kong for protection [20].
12. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [21]-[34]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
13. The applicant has filed Form 86 dated 18 July 2019 for leave to apply for judicial review of the Board’s Decision.
14. The applicant has raised the grounds below in support of her application.
(1) The hearing bundle was given to her shortly before the hearing before the Board.
(2) She was not legally represented before the Board.
(3) The Board failed to consider her physical and mental torture from the government party leader.
(4) The adjudicator’s assessment did not attain higher standards of fairness.
(5) She has a son in Hong Kong born in 2018. She wants to stay in Hong Kong with her son.
DISCUSSION
15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).
16. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong. But she wanted the Court to review it because she had 3 children born in Hong Kong. Their father is a Hong Kong resident. But she has not applied for a dependent visa.
17. 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.”
18. As to the applicant’s grounds under paragraph 14, she had not raised the issue that she did not have enough time to prepare her appeal hearing before the Board. She is not entitled to free legal representation at all stages of the proceeding[1]. Grounds (3) and (4) are her bare assertions or comments only. They are not valid to challenge the Board’s Decision[2]. Her sons in Hong Kong does not constituent a valid reason to challenge the Board’s Decision[3]. All of her grounds fail.
19. The applicant has raised no valid ground to challenge the Board’s Decision.
20. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant appeared in person.
[1] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
[3] Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, CJ Ma, Mr Justice Ribeiro PF, Mr Justice Fok PJ, Mr Justice Stock NPJ and Mr Justice French NPJ, 4 April 2019
“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”
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