Islam Asia v. Torture Claims Appeal Board

HCAL 848/2018

[2020] HKCFI 2126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 848 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Bangladesh who arrived in Hong Kong on 9 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 August 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 29 September 2014, she did not depart and instead overstayed until 11 April 2016 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 certain member of the political party Bangladesh Nationalist Party (“BNP”) over some money dispute and/or by her husband’s family who blamed her and her husband over the death of his brother in another incident.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village North Gazipur, Sub-district Matlab, District Chandpur, Bangladesh.  After leaving school she married her husband and worked as a secretary in one of BNP’s charitable projects collecting donations for the project and depositing them into the local bank.

3.In 2010 her husband’s brother was killed in Chandpur for which her husband’s family accused the Applicant and her husband of being responsible for the killing over the brother’s money, and filed a court action against both of them which had taken years but during which her husband’s family had frequently made death threats against them.

4.Meanwhile sometime in 2013 on one occasion after the Applicant had collected the donations for BNP but as it was too late to deposit them into the bank, she therefore placed the money in her home for banking on the following day, but on the next day she discovered that the money had been stolen by her husband who had then spent all of it, and when she reported the matter to her superior Sultana, she was accused by her superior of misappropriating the money and was threatened that she and her husband would be killed if they failed to repay the money to the party.

5.Thereafter both she and her husband had been threatened and assaulted by Sultana and her men on many occasions over the matter, and in order to repay the money, the Applicant therefore applied to work as a foreign domestic helper in Hong Kong, and so on 9 August 2014 she departed Bangladesh for Hong Kong, but when her employment contract was terminated in September 2014, and when she heard that her husband had been killed by Sultana’s men, she did not depart Hong Kong and subsequently surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 11 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 29 September 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Sultana or her husband’s family upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that these were private monetary or family disputes between them 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 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 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka where it would be difficult if not impossible for Sultana or her husband’s family to locate her.

8.On 10 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 14 March 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 7 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence of what occurred to her in Bangladesh so inconsistent, confused and incredible that it did not accept that they were based on her personal or actual experience and considered that they were in fact embellished, exaggerated and fabricated that she was not a reliable witness who had fabricated her claims to create a basis for non-refoulement protection, and concluded that there are no substantial grounds to believe that the Applicant faces a risk of being subjected to harm by anyone upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 16 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the previous decisions and documents of her hearing bundle for her appeal before the Board without putting forward any proper or valid ground for her intended challenge.  Nor did she request any oral hearing for her application.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 or procedural unfairness or irrationality in their decisions being clearly and properly 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 56 – 115 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.Furthermore, 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.     

14.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.

15.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 1^st day of September 2020. 

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