HCAL 1850/2018
[2020] HKCFI 1210
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1850 of 2018
BETWEEN
| Begum Josna | Applicant |
| and | |
| Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| and | |
| 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 27 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
The applicant
2. The applicant is a Bangladeshi national. She came to Hong Kong on 30 May 2016 as a domestic helper. She overstayed after her contract had terminated prematurely. On 31 May 2017 she was arrested and charged. She was convicted of the offence and sentenced to 8 weeks’ imprisonment. By way of written representations respectively dated 27 June and 7 July of 2017, she lodged her non-refoulement claim.
3. In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the people of the Bangladesh Awami League (“BAL”) in her locality, the political rivals of her father and husband because she refused to cease supporting the Bangladesh National Party (“BNP”).
4. The events leading her to leave her country for Hong Kong arose out the conflicts between her and her father being supporters of the BNP and the people of the BAL. The BAL people attacked her father and his friends at a public place because they teased the BAL in a news report. They always caused troubles to her father too. In around the end of 2015, her father was killed. She reported the matter to police. Police made investigations. BAL people warned her and her mother to drop the case. Her mother refused to do so. They assaulted her and her mother. Her husband was also attacked when he tried to intervene. About two weeks after the incident, her husband was run over by a truck in a morning after he had finished his prayer in a nearby mosque. He husband died. She reported the matter to police again. Then, one day, she was abducted to an old house at an unknown place. The people beat her up and tied her hands above her head. They then went to another room to have beer. She considered that they might rape her after their meal. She untied herself and escaped. She managed to reach the main road and got a pass-by truck to give her a lift home. She did not report to police this time. She went to Dhaka and found an employment agency to help her find employment in Hong Kong. On 30 May 2016, she came to Hong Kong with the aid of the agent.
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 9 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being harmed or killed by the BAL people [11]; state protection was available to her [19]; internal relocation was an option open to her [23] and the applicant failed to establish her claim under BOR 2 risk.
The Board’s Decision
7. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 19 July 2018.
8. By 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 the conclusion that the applicant's claims were not truthful and that the applicant was an untruthful witness. She manufactured her claims in an attempt to extend her stay in Hong Kong. See paragraphs 103-132 of the Board's Decision and that internal relocation was an option open to her [127]. She failed to establish her BOR 2 risk [128].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 5 September 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, she relied the grounds below.
1. The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement.
2. The Adjudicator acted in a procedurally unfair manner in dealing with her appeal.
3. The Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.
4. The Board failed to meet the greater care and duty owed to her, a self‑represented claimant.
DISCUSSION
12. The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. She said that her lawyer had explained the Director’s Decision to her. However, she had forgotten the Board’s Decision. The Court explained the Board’s Decisions to her.
13. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.
14. 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.”
15. Those grounds above are her opinions without any evidence or particulars in support of them. They do not assist her application.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. 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.
Dated the 17th day of June 2020
| | (Mike Mak) |
| | 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
Notesfor the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: | | | | |
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)). | | Sent to the Applicant
on 17/6/2020
Begum Josna
Applicant’s ref. no:
Nil. | | 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 17/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10887/18/3/339/B1194
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3616/17 (formerly RBCZ 11379/17)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1