Akter Shafali v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 420/2018

[2019] HKCFI 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 420 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 Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of Bangladesh who arrived in Hong Kong on 18 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination.  However, when her contract was prematurely terminated on 23 January 2015, she did not depart and instead overstayed until 1 April 2016 when she surrendered to the Immigration Department and then raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband and/or by the police due to a false claim against her.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born in Mymensingh and raised in Khila, Aatpara, Netrokona, Bangladesh.  After leaving school she married her husband who was a member of the political party Awami League (“AL”) without any holding any specific position in the party, but it was only after their marriage that the applicant came to realize that he was in fact a gangster under AL’s protection.

3.After giving birth to her second child in 2010, her husband started to become abusive towards the applicant first verbally, and then physically by slapping and punching and kicking her almost every week.

4.One day in 2011 her husband brought some of his friends home for dinner during which his friends became drunk and acted indecently towards the applicant, and when she protested to her husband, she was ordered to entertain his friends, and when she tried to flee the house she was grabbed by her husband who proceeded to slap and punch her until she lost consciousness.  By the time she regained consciousness, she found herself naked in her bed with bruises all over her body, and although her husband and his friends were all gone, she suspected that she had been raped by them after she fainted.

5.After the incident she was advised by her mother to leave her husband, but before she could find the opportunity to do so, her husband again brought his friends home on two more occasions when she was again raped by his friends.

6.Eventually in late 2011 the applicant was able to run away to hide in her friend’s place in Kishoreganj, but as her husband was looking for her everywhere, she therefore fled to Dhaka where she worked as a domestic helper to earn her own living for two years without any incidents, but when she heard from her mother that her husband had made certain false claims against her to the police so as to force her to return to him, she decided that it was no longer safe for her to remain in Bangladesh, and so with her friend’s help she found a job to work as a foreign domestic helper in Hong Kong on 18 November 2014, and when her employment was prematurely terminated, she overstayed in Hong Kong and later surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 20 April 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.By a Notice of Decision dated 6 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband to the applicant upon her return to as low due to the low intensity and frequency of past ill-treatment from him, that there was no reliable evidence that the police were looking for her over any false charges given that she was able to leave Bangladesh without any problem, that her dispute with her husband was a private domestic matter without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for her husband to locate her.

9.On 16 June 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which she failed to attend the oral hearing scheduled on 1 November 2017 before the Board, and after she again failed to respond to the Board’s request for explanation as to her non-attendance, the Board proceeded to deal with her appeal in her absence and on papers.  On 18 December 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board in the absence of any oral evidence from the applicant but found on the basis of the available materials that her claimed fear of harm from her husband was plausible, but the fact that she was able to live unharmed in Bangladesh subsequent to those assaults could not on any view amount to a real risk of her experiencing any of the types of harm that would entitle her to non-refoulement protection, that they were domestic violence and sexual assaults from which state or police protection would be available to her, and concluded that her claim failed on all applicable grounds.

11.On 15 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing her non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration the right to life must be protected from extra-judicial killings which she may face if deported to Bangladesh; and

(4)  that the adjudicator failed to give her sufficient time and opportunity to arrange relevant evidence for her non-refoulement claim and her appeal.  

12.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to her claim, or how the adjudicator failed to give her sufficient time or opportunity to produce relevant evidence in support of her claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even now in her present application before me or at her oral hearing, she did not produce any further or additional evidence in support of her claim.  In the premises I do not find any basis or merits in any of these grounds of the applicant or that any of them is reasonably arguable for her intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

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

15.In the premises and 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 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 applicant’s claim.

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

Dated the 21^st day of June 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