Akter Safia v. Torture Claims Appeal Board

HCAL 972/2018

[2021] HKCFI 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 972 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 December 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Bangladesh who last arrived in Hong Kong on 1 April 2014 with permission to work as a foreign domestic helper until, the expiration of her employment contract on 1 April 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 1 September 2014 she did not depart and instead overstayed, and was arrested by police on 22 October 2014 for overstaying and for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of rival political party Awami League (“AL”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Malir Anko, Lohujon, Munshiganj district, Bangladesh. After leaving school she got married and raised a family with 2 children in her home village where her late father and husband were both affiliated to the political party Bangladesh Nationalist Party (“BNP”) and had held high positions in that party.

3.In 2010 the Applicant joined an organization known as Islamic Chhatra Shirbir (“ICS”) which was a student wing of the political party Jamaat-e-Islami (“JEI”) regularly attended its local meetings and rallies in her home village.

4.One night in December 2012 while she was on her way home, she was confronted by a group of men claimed to be AL supporters who demanded her to stop supporting JEI, and when she refused, they beat her with wooden sticks that she lost consciousness, and was subsequently taken to the hospital by other villagers for medical treatments for her head injury.

5.After her discharge from hospital, she reported the matter to the police but no investigation was launched as she was unable to identify her assailants.

6.A few days later the Applicant was informed by her husband that some policemen together with some unknown men had come to their home looking for her over 3 criminal cases brought against her but refused to disclose any further details to him, of which the Applicant suspected that the AL supporters were behind all these false charges brought against her. 

7.Several months later one night in March 2013, the Applicant saw some men carrying weapons approaching her home, and when she recognized that some of them were involved in the earlier attack of her, she feared that they were coming to kill her and therefore fled through the backdoor to hide in a friend’s ’s place in the neighbouring village, and from there she later moved to Kolatia where she made arrangement to leave Bangladesh by applying to work in Hong Kong as a foreign domestic helper, and so on 8 November 2013 she arrived in Hong Kong for her employment, but later when her second contract was terminated, she did not depart and instead overstayed in Hong Kong, and upon her arrest by the police she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.By a Notice of Decision dated 5 June 2015 the Director of Immigration (“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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that she was being pursued by the police, or that she had been specifically targeted by those AL supporters given her low position in JEI with no official post and that after all these years that it is doubtful that they would still have any adverse interest in her, that in the absence of 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 166 million people spread across a vast territory of more than 140,000 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 those local AL supporters to locate her.

10.By a Notice of Further Decision dated 24 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her 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 Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 19 June 2015, and for which she attended an oral hearing on 24 January 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 1 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found no reliable evidence that any criminal charges had been brought against her in December 2012 or that she was being pursued by the police when nothing had happened to her for more than one year before she was able to leave Bangladesh in February 2014 without any difficulty, nor was there any reason why the AL people would specifically target her for political reason when she was just a member of the local youth wing of a rival political party without any official post, nor had any similar threats being made to her husband who held more important post in AL’s bigger rival BNP, and concluded that the Applicant had failed to establish her claim that she would face any genuine and substantial risk of harm from anyone for political reasons upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.     

13.On 30 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 that decision as well as documents in her hearing bundle for her appeal before the Board without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

14.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the three-month period for her to file her Form 86 fell on 1 March 2018, the Applicant was therefore almost 3 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v The Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of almost 3 months must be considered as significant or substantial, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good or valid reason for her significant delay.

17.As for the merits, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her intended challenge either. As such and in the absence of any error in 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 or merits in her intended application.   

18.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.

19.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her 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.     

20.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.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time, and accordingly dismiss her leave application.

Dated the 27^th day of April 2021.

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