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Doly Sharmin Akther v Torture Claims Appeal Board / Non-refoulement Claims Petition Office And Another [Decision On Leave Application]

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date28 June 2018
Neutral Citation[2018] HKCFI 1414
Year2018
Judgement NumberHCAL1135/2017
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1135/2017 DOLY SHARMIN AKTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1135/2017

[2018] HKCFI 1414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1135 of 2017

BETWEEN

Doly Sharmin Akther Applicant
and
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office 		1st Putative Respondent
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;

consideration of documents only
consideration of documents and the Applicant being absent from court

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 Bangladesh national. She is now aged 28 (DOB: 1 January 1990).

2. The Applicant claimed she would be ill-treated or killed by moneylenders in Bangladesh. The moneylenders were leaders of the Jubo League, which was the youth wing of the Awami League (“AL”). They were notorious and engaged in illegal activities. They had good relation with AL leaders, members of the Parliament and influential people. The Applicant's husband had borrowed money from those moneylenders and could not repay them. He later died in 2013.

3. The Applicant said she got married in 2009. Her husband was a drug user and was violent to her. He had borrowed money to buy drugs. The Applicant only knew this in February 2013 when some armed men came to her home to vandalise the properties. They threatened to kill the Applicant’s family if her husband could not repay the debt. The Applicant learnt from her husband that he owed those people 400,000 - 500,000 Bangladesh Takas.

4. The Applicant and her husband reported the matter to the police. However, no one was arrested. The Applicant guessed the culprits had bribed the police.

5. The Applicant thought she could not stay in Bangladesh. She feared she would be tortured by her husband and the debt collectors. She feared she would be killed.

6. In mid-2013, the Applicant saw an advertisement of domestic work. She went to Dhaka to receive training for three months before coming to Hong Kong to work as a domestic helper in late 2013. After she had come here for two months, she learnt her husband was stabbed to death in Bangladesh in August 2013. The Applicant guessed the AL people had killed her husband.

7. The Applicant's employment contract was terminated prematurely in January 2015. She had to leave Hong Kong on or before 5 February 2015 but she overstayed. She was arrested eight months later in October 2015. Then she lodged a non-refoulement claim.

8. The Applicant said her family in Bangladesh told her that the AL people were still looking for her. She believed she would be killed by them or sold to sex traffickers/brothels if she could not repay her husband’s debt.

9. The Applicant thought the Bangladesh authorities would not help her because AL was the ruling party. She claimed internal relocation was not viable since she would not be able to live on her own and the AL people had strong networks to find her.

10. 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

11. On 22 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

12. Things happened in this order: –

Nov 2013 The Applicant came to Hong Kong to work as a domestic helper.
2015-1-22 The Applicant's employment contract was terminated prematurely. She had to leave Hong Kong on or before 5 February 2015.
2015-2-6 The Applicant began overstaying in Hong Kong.
2015-10-29 The Applicant was arrested by the police.
2015-11-22 The Applicant raised a non-refoulement claim.
2016-4-27 The Director held a screening interview with the Applicant.
2016-7-12 The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”]
2017-6-30 The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-7-14 The Applicant failed to submit additional facts by the deadline or thereafter.
2017-7-24 The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-10-31 The Applicant appeared before the Board for appeal.
2017-12-7 The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2017-12-22 The Applicant applied for leave for judicial review.

Respondents

13. 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.

14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

15. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

16. In the present case, the two Director's decisions were more than three months old by the time the Applicant filed her current application on 22 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 7 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 22 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

17. In the Director’s decision dated 12 July 2016, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of her allegations, the officer found the level of the Applicant's claimed risk was low.

18. The officer considered the Applicant's feared situation was a private dispute between her and the moneylenders. There was no state instigation or state acquiescence. The officer did not accept the Bangladesh police refused to assist the Applicant. After balanced consideration of the country-of-origin information (“COI”), the officer was...

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1 cases
  • Re Doly Sharmin Akther
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • December 21, 2018
    ...any male companion as her husband had passed away. 4. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1414. We shall not repeat the same 5. By the Notice of Decision dated 12 July 2016, the Director of Immigration (“the Director”) decided agains......

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