HCAL 1111/2018

[2020] HKCFI 2592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1111 OF 2018

BETWEEN
Payara Mst Rabaya Akter Applicant

and

Torture Claims Appeal Board/ Putative

Non-refoulement Claims Petition Office 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:

 consideration of the documents only; or

 consideration of the documents and oral submission of the Applicant

being present/ absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for judicial review be refused.

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Observations for the Applicant:

Introduction
1. This is an application for leave to apply for judicial review against the
decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition
Office (“the Board”) confirming the decision of the Director of Immigration (“the
Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1990, is a national of Bangladesh. She arrived in
Hong Kong on 18 December 2014 to take up employment as a domestic helper.
Her contract was prematurely terminated and her permission to stay ended on
14 September 2015. She then overstayed unlawfully until she was arrested by the
police on 10 October 2015 for overstaying and referred to the Immigration
Department for investigation. She then lodged a non-refoulement claim. She was
subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement
claim are summarized at para [5-64] of the decision of the Board. Put simply, the
claim was based on the fear that, if refouled, her life would be in danger because
of (i) the political dispute between Awami League (AL) people as she had
participated in Bangladesh National Party (BNP) and (ii) her conversion to
Christianity from Islam. She claimed that she was raised as a Muslim and
supported the BNP. She was appointed secretary of the BNP at her village level
in 2005. She participated in activities of BNP and was in conflict with people of
AL. She had been assaulted and threatened by AL people in order to stop her
from participating in BNP rallies. In August 2014, she formally converted to
Christianity. After her baptism, she stopped her BNP volunteer work. She was
threatened by BNP members that she would face big problems for conversion of
her religious belief. Her husband even tried to hurt her with a fruit knife. She
decided to leave her village and eventually left her country after a training for
3 months to take up domestic worker employment in Hong Kong.

The Director’s decision

4. By a notice of decision dated 19 September 2017, the Director rejected the
applicant’s non-refoulement claim on all applicable grounds for reason that the
claim was not substantiated. Having taken into account all relevant
circumstances, the Director found that there are no substantial grounds for
believing that her life would be endangered by the AL people or the Muslim
community upon return to her country. Moreover, state protection as well as
internal relocation as a reasonable option are available to the applicant. The

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decision covered torture risk1, BOR 2 risk2, BOR 3 risk3, and persecution risk4.
The applicant lodged an appeal/ petition to the Board against the Director’s
decision.

The Board’s decision

5. The applicant attended a hearing before the Board on 22 March 2018.
6. By a decision dated 11 June 2018, the Board rejected the appeal/ petition
confirming the Director’s decision. The Board’s decision covered all applicable
grounds.
7. The Board gave detailed reasons for rejecting the applicant’s claim at
para [70-102] of its decision. The essential reasons can be summarized as
follows:
(1) The applicant’s evidence was vague, confused, inconsistent and
unconvincing [71-81,];
(2) Her evidence about the events after her conversion was “discovered” and
her escape from her village were far-fetched and difficult to believe [87];
(3) She was not a reliable witness and her evidence was embellished,
exaggerated and fabricated to create a claim for protection [99];
(4) The Board did not accept the claims that she was a member of BNP or ever
subjected to adverse treatment for her association or involvement of
support of BNP [100];
(5) It did not accept that she converted to Christianity or ever subjected to
adverse treatment for reasons relating to her religious beliefs or activities
[101].
8. The Board concluded that there was no substantial ground for believing
that the applicant would be in danger of being subjected to torture or ill-treatment,
if refouled.

Application for leave to apply for judicial review

9. The applicant filed a Form 86 on 15 June 2018 for leave to apply for
judicial review of the decision of the Board.

1
This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
2
This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights
Ordinance, Cap 383.
3
This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of
Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
4
This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the
1951 Convention relating to the Status of Refugees and its 1967 Protocol.

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10. In the Form 86 and affirmation in support, the applicant did not set out any
grounds for the relief sought.

Discussion
11. The relevant principles regarding non-refoulement cases have been set out
comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at
paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced
standard in scrutinizing the decision of the Board due to the seriousness of the
issue at hand, it should not usurp the role of the Board. Assessment of evidence,
country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.
12. When the applicant pursued the appeal to the Board, the Director’s decision
was superseded by the Board’s decision and is no longer susceptible to judicial
review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to
examine the decisions of the Director and the Board with rigorous examination
and anxious scrutiny, it is unnecessary to delve into the decision of the Director.
This Observations for the Applicant will only focus on discussing the latter’s
decision.
13. The court is under a duty to examine the decisions of both the Director and
the Board with rigorous examination and anxious scrutiny to find out if there are
any error of law, irrational findings, or procedural unfairness.
14. In the present case, the Board in fact rejected the applicant’s appeal/
petition on the ground that it disbelieved the applicant and rejected the account of
primary facts based on the vagueness, major inconsistencies and contradictions in
the applicant’s evidence. On the factual findings, there would be no factual basis
in support of any of the applicable grounds.
15. As explained above, the assessments of evidence and risk of harm are
primarily within the province of the Board and the Director. This court will not
interfere with their decisions unless there is a public law ground for the court to
do so.
16. The Form 86 and affirmation set out no grounds to demonstrate why the
Board was unfair or unreasonable in the public law sense. In the absence of any
error of law or procedural unfairness being shown by the applicant, I do not find
any reasonably arguable basis to challenge the findings of the Board.

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17. The applicant had stopped her participation in BNP after her conversion to
Christianity. There was no reason why she should still worry about her safety
because of her involvement in BNP. Her conduct in Hong Kong by her delay in
lodging the claim for protection after her contract was terminated indeed
damaged her credibility and was inconsistent with someone in genuine fear for
her life and safety.
18. The Board engaged in a joint endeavour with the applicant and considered
all relevant criteria. It gave the applicant a reasonable opportunity to state her
case and enquired into the issues appropriately. There cannot be any criticism of
the Board’s determination which is eminently reasonable.
19. Having considered the decisions of both the Director and the Board with
rigorous examination and anxious scrutiny, I do not find any error of law,
irrational findings, or procedural unfairness in either of them. Nor do I see any
failure on their part to apply high standards of fairness in their decisions.

Disposition
20. For the reasons given, there is no reasonable prospect of success in the
applicant’s intended application. Accordingly, I refuse to grant leave to apply for
judicial review.

Dated 22 October 2020

(Chung Lai Fan, Christine)
for Registrar, High Court

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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 the
Applicant’s solicitors
must:
a) serve on the Sent to the Applicant Sent to the Putative
respondent and such on 22 October 2020 Respondent / the Putative
interested parties as Respondent’s solicitors /
may be directed by the Payara Mst Rabaya such Putative Interested
Court the order Akter Parties as may be directed by
granting leave and any the Court / the Putative
directions given within Applicant’s ref. no: Interested Parties’ solicitors
14 days after the leave Nil. on 22 October 2020
was granted (Order 53,
rule 4A); Torture Claims Appeal
Board/
b) issue the originating Non-refoulement Claims
summons within Petition Office
14 days after the grant Putative Respondent’s ref.
of leave and serve it in no.:
accordance with USM 8624/17/9/296/B984
Order 53, rule 5; and
Director of Immigration
c) supply to every other Putative Interested Party’s
party copies of every ref. no.:
affidavit which the QA T/C 1815/17
Applicant proposes to (formerly RBCZ 13784/15)
use at the hearing,
including the affidavit Department of Justice,
in support of the Senior Assistant Law
application for leave Office
(Order 53, rule 6(5)). (Civil Law)
(Civil Litigation Unit 2)

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