Begum Mst Sinthia and Another v. Torture Claims Appeal Board

HCAL 651/2018

[2019] HKCFI 1037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 651 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 last arrived in Hong Kong on 4 July 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 employment contract was terminated on 6 March 2016 after she became pregnant with her daughter the 2^nd applicant (“A2”), she overstayed and 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 neighbor over a land dispute, and after given birth to A2 in Hong Kong on 27 December 2016 she also raised the same claim on A2’s behalf.  They have since been released on recognizance pending the determination of their claim.

2.A1 was born and raised in Mirpur, Dhaka, Bangladesh in her father’s property which was coveted by her neighbor Nannu who was a member of the ruling political party Awami League (“AL”) as the property was valuable due to its close proximity to the airport and was once forcibly occupied by Nannu until her father was able to recover the property through a court case.

3.In 2004 her father passed away and the applicant inherited the property, and Nannu started to harass the applicant’s mother to give up the property to him with threats of violence towards her family including kidnapping the applicant unless he was given the property.

4.The applicant’s mother did not report Nannu’s threats to the police because Nannu was a power man with political connections, but in order to avoid his threats and harassments, she moved the family to Dhaka where she rented a property to house the family but kept the title deeds to the property in Mirpur.  Afterwards she heard from her neighbours in Mirpur that Nannu had taken possession of the property but was still looking for the applicant’s mother for the title deeds.

5.In 2010 the applicant went to work as a domestic helper in Lebanon to avoid Nannu’s threats, but after she returned to Bangladesh in 2013, Nannu started to harass her for money, but after her mother had succumbed to his threats by handling over the title deeds, Nannu continued to harass the applicant for money with threats of violence.  To avoid Nannu the applicant departed Bangladesh again in November 2013 for Hong Kong to work as a foreign domestic worker, during which she met and eventually married her husband in Hong Kong, and when her employment contract was terminated after she became pregnant with A2, she overstayed in Hong Kong and raised her non-refoulement claim for herself and A2, for which she later completed a Non-refoulement Claim Form jointly for both of them on 13 July 2017 and attended screening interview before the Immigration Department with legal representation form the Duty lawyer Service.

6.By a Notice of Decision dated 27 July 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

7.In his decision the Director took into account all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that they would be harmed or killed by Nannu or his men upon their return to Bangladesh due to the absence of past ill-treatment from them, as the title of the property had already been passed to Nannu that there was no longer any reason for him to harm the applicants, that any dispute between Nannu and A1 and her family was a private personal matter without any official involvement that state or police protection would be available to the applicants 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 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 Chittagong where it would be difficult if not impossible for Nannu to locate them.

8.On 4 August 2017 the applicants filed a notice of appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision of the Director, and for which they attended an oral hearing on 20 December 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 6 April 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found A1’s account of the threats from Nannu vague and lack of details and essentially based on hearsay, but that even if her account was accepted that there is no real risk that she or A2 would be at risk of harm from Nannu or his men as there would be no reason for further harassment or threats against the applicants after having already obtained the title to the property, and that state protection and reasonable internal relocation were available to the applicants that their claim for non-refoulement protection failed on all applicable grounds.  

10.On 17 April 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1)  procedural unfairness in that the adjudicator had unlawfully fettered his discretion by refusing their appeal on the grounds that they did not satisfy the requirement, that he acted in a procedurally unfair manner in dealing with their appeal, that his decision to refuse their appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness, and that the adjudicator failed to meet the greater care and duty owed to a self-represented claimant;

(2)  procedural impropriety in that the Board had significantly relied on source of news not officially recognized or is simply hearsay or outdated that resulted in groundless speculations that it would be safe for them to return to their home country; and

(3)  procedural unfairness in providing the hearing bundle to them only a few days before the appeal hearing without translation or interpretation.  

11.The complaints under the first two grounds are however just broad and vague assertions of the applicants containing several 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 how the adjudicator had unlawfully fettered his discretion, or why was his decision unfair or unreasonable in the public law sense, or in what way did the adjudicator fail to take into account of relevant COI or which information were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of the complaints under either ground.

12.As for their complaint under Ground (3) about the hearing bundle being provided to them only a few days before the appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English without translation and thereby given them insufficient time to prepare for their appeal.

13.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 decision should by then 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 was completed on their own instructions with legal assistance, and that at the oral hearing A1 never raised any issue or requested the adjudicator for further time to enable her to better prepare for the appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

14.Furthermore, 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.

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 applicants’ claim.

16.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 28^th 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