SOREN SUME v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1829/2018

[2020] HKCFI 1536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1829 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.  The applicant applies for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 4 October 2019.

3.  Leave was granted to the applicant to amend Form 86 by filling in the column for the respondent with the Board and replacing the Board by the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a national of Bangladesh. She came to Hong Kong on 21 January 2014 as a domestic helper. Her contracted was terminated on 18 April 2014. She departed Hong Kong and re-entered and stayed for another employment contract, which was terminated on 12 August 2014. On 25 September 2014, she surrendered herself to the Immigration Department. On 18 November 2014, she lodged a non-refoulement claim.

5.  In support of her claim, she said that if refouled, she feared that she would be harmed or killed by (i) the Muslim as she belonged to Christian and Santhali and (ii) Romesh Tudu, her husband due to domestic dispute.

6.  She married her husband in 1999 and gave birth to two children in 2004 and 2006 respectively. Her husband did not work. He would assault her during family disputes. He slapped her and hit her body. But she did not report to police. In around 2007, she moved to live with her own family. Since then, her husband had not assaulted or threatened her.

7.  As for the religious reason, she felt that she was discriminated by the Muslims. But she admitted that she was never assaulted or threatened by the Muslims. She was never harmed by the Muslims. She elected to work in Hong Kong.

The Director’s Decisions

8.  The Director first 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”).

9.  By Notice of Decision dated 1 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  See the reasons in paragraphs 10-23 of the Director’s Decision.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 21 May 2018.

11.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

12.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion:

“85. The Appellant’s claim and evidence given in relation to her fear that she will be subjected to ill-treatment inflicted by the Muslims and her husband if she returns to Bangladesh are based on her speculation.”

13.  For the reasons, see paragraphs 42-66 of the Board’s Decision.

Application for leave to apply for judicial review

14.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In her affirmation in support of her application, she set out the grounds below.

1.The Board failed to maintain high standard of fairness for not holding an oral hearing, allowing the applicant an opportunity to put forward her case.

2.The Board failed to act fairly.

3.The Board failed to take into consideration that she was not legally represented.

4.The Adjudicator did not inform her that she could complain.

DISCUSSION

16.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.

17.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage.

18.  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.”

19.  Ground (1) is not true; ground (2) is only her opinion without any evidence or particulars in support of it; Ground (3) fails in light of the authority above and ground (4) is not a reason for her application.

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

CONCLUSION

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