Khanam Masuma and Another v. Torture Claims Appeal Board

HCAL 523/2018

[2019] HKCFI 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 523 of 2018

BETWEEN

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 submissions by the 1st Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st applicant (“A1”) is a 35-year-old national of Bangladesh who arrived in Hong Kong on 21 June 2013 with permission to stay and work as a foreign domestic helper until the expiration of her employment contract on 21 June 2015 or within 14 days of its early termination.  On 6 February 2014 her contract was prematurely terminated but she did not depart and instead overstayed until 23 July 2014 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her creditor for failing to repay her loan and/or by her former husband for refusing to reconcile with him, and after she was released on recognizance pending the determination of her claim, she gave birth to a daughter the 2^nd applicant (“A2”) on 21 June 2015 in Hong Kong and for whom she also lodged a non-refoulement claim on the same basis with an additional ground that they would be rejected by her family and would face discriminations as a divorced woman with a child in Bangladesh.

2.A1 was born and raised in Jessore, Bangladesh. After leaving school she worked as a nurse, married her former husband and gave birth to two daughters.  However, her husband was unemployed most of the time during their marriage and became abusive to her by frequently hitting her with wooden sticks that caused injuries to her limbs which required treatments by an orthopaedic doctor.  Finding herself unable to tolerate his abuse, the applicant divorced her husband in 2009 and went to work as a nurse in Dhaka, leaving the daughters in the care of her former husband in Jessore.

3.In 2013 the applicant decided to work as a foreign domestic helper in Hong Kong, and in order to pay her employment agent she borrowed 300,000 Bangladeshi taka from Rahman, an influential businessman with political connection, at a 15% monthly interest payment and with the principal sum to be repaid within one year.

4.On 21 June 2013 the applicant arrived in Hong Kong to start her employment and from her salaries she remitted the monthly interest payments to Rahman, but when her employment was terminated prematurely on 6 February 2014 and she was unable to find another job to make any more interest payments or to repay the principal loan, Rahman threatened her on the phone that he would kill her if she failed to repay her loan.

5.Fearing that she would be harmed or killed by Rahman if she returned to Bangladesh, and as her former husband had also threatened to kill her when she refused his demand for a reconciliation, the applicant therefore decided not to return to Bangladesh and instead overstayed in Hong Kong, during which she was told by her family that Rahman had also made threats against them including to kidnap her daughters and to sell them to compensate for his loss, and only stopped harassing her family when they reported the matter to the police.

6.At about the same time the applicant formed a relationship with a man in Hong Kong with whom she later went through a religious marriage ceremony, and after surrendering to the Immigration Department she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.After giving birth to A2 the applicant also completed a NCF for her on 25 January 2016 on the same basis with an additional ground that they would be rejected by her family and would be discriminated as a divorced woman with a child if refouled to Bangladesh, and agreed that their claims be assessed jointly together by the Immigration Department.      

8.By a Notice of Decision dated 9 September 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.In his decision the Director took into account all the relevant circumstances of the applicants’ claim and assessed the level of risk of harm from A1’s creditor or former husband upon their return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any threats from A1’s former husband since their divorce in 2009, that any problem that A1 may have with her creditor or former husband was a private or domestic dispute without any official involvement that state or police protection would be available to the applicants if resorted to, that their fear of rejection and discrimination as a divorced woman with a child in Bangladesh is purely speculative and unsupported by reliable and objective Country of Origin Information (“COI”) which also show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other part of Bangladesh away from her home district in large cities such as Dhaka where she had lived and worked before and where it would be difficult if not impossible for her creditor or her former husband to locate her or A2.

10.By a Notice of Further Decision dated 24 August 2017 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 22 September 2016, and for which they attended an oral hearing on 28 November 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 January 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found that the applicants had not made out a case for non-refoulement protection on the evidence before it, as neither of them had suffered any physical or mental ill-treatment, nor had such treatment attained the minimum level of severity under any of the applicable grounds, that all her asserted fear of harm arose from private monetary or domestic dispute from which state or police protection would be available, as well as reasonable internal relocation alternatives for A1 as an able-bodied adult with work experience to move with A2 to other parts of Bangladesh to avoid her creditor or former husband.  

13.On 29 March 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, and in it she put forward the following grounds for their intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing the applicants’ appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with their appeal;

(3)  that the Board’s decisions to refuse their appeal were unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  that the Board had significantly relied on source of news not officially recognized or was simply hearsay and outdated resulted in groundless speculations that it was safe for them to return to their country of origin.  

14.These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision or that it was unreasonable or irrational, or in what way did the Board fetter its discretion in refusing their appeal, or how the adjudicator acted procedurally unfair in dealing with their appeal, or what COI relied on by the Board were outdated or hearsay or unofficially recognized.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and in the absence of any error in the decision being clearly and properly identified, I do not find any basis or merits in any of these complaints of the applicants, or that any of them are reasonably arguable in their intended challenge.

15.The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

16.Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF were completed on their own instructions with legal assistance, and that at their oral hearing A1 never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  As such I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.

19.For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 10^th day of May 2019.

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