Akter Nargis v. Torture Claims Appeal Board

HCAL 677/2020

[2021] HKCFI 2358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 677 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Bangladesh who last arrived in Hong Kong on 28 January 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 January 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 June 2014, she did not depart and instead overstayed, and was arrested by police on 18 December 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband and/or her creditor for failing to repay her loan. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Mirpur, Bangladesh before moving to Chittagong with her family where she worked in a garment shop and followed her family’s tradition to support the political party Bangladesh Nationalist Party (“BNP”).

3.In 2009 the Awami League Party (“AL”) won the general election and became the ruling party, and which led to many conflicts between their supporters and of BNP.

4.One day in June 2012 while she was on her way to work, the Applicant was abducted by several AL supporters and was kept in a godown during which she was raped by their leader Raju who subsequently forced her to marry him by a Muslim priest.

5.Eventually the Applicant was rescued by her family and brought back to Chittagong, but Raju kept looking for her everywhere, and in order to avoid him the Applicant on her parents’ advice made arrangement to come to Hong Kong to work as a foreign domestic helper by borrowing a loan from a local loan shark to pay for her agency fees and expenses, and on 1 November 2013 she departed Bangladesh for Hong Kong to start her employment as a foreign domestic helper, and with her monthly salary she made monthly remittance to Bangladesh for her loan repayments.      

6.However, when her employment contract was prematurely terminated on 26 June 2014, and without any income to repay her loan she became fearful of harm from her creditor and/or Raju in Bangladesh, she therefore did not depart and instead overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

7.While being released on recognizance pending the determination of her claim, the Applicant was arrested by police again on 14 December 2016 for the offence of wounding and was subsequently convicted and sentenced to prison for 10 months.      

8.By a Notice of Decision dated 25 October 2017 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 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”).

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 Raju or her creditor upon her return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were private domestic or monetary disputes 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 182 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 Raju or her creditor to locate her.

10.On 7 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 May 2018 before the Board during which she requested for an adjournment due to medical reason and which was then adjourned to 16 May 2019 but she did not attend without any explanation, and as a result the Board proceeded to deal with her appeal in her absence and on paper. On 30 May 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found from the medical evidence submitted by the Applicant that she may have suffered from some mania and psychotic symptoms which had since been in remission on prescribed medications and which was not accepted as the reason for her failure to attend the subsequent adjourned hearing, and that in the absence of her oral evidence and on the basis of the materials and information before the Board that it concluded that the Applicant had failed to establish her claim for non-refoulement protection on all the applicable grounds.        

12.On 17 April 2020 the Applicant filed her Form 86 for leave to apply for judicial review of a decision which she stated as one of 25 October 2017 by the Appeal Board, but the only decision then made by the Board was the one dated 30 May 2019, while the Director’s decision was indeed dated 25 October 2017 but which is not susceptible to judicial review after the Applicant had pursued an appeal to the Board: see Re Moshsin Ali [2018] HKCA 549, and accordingly I shall treat her leave application as one for judicial review of the Board’s decision of 30 May 2019, but for which no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

13.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.

14.As the last day of the three-month period for her to file her Form 86 fell on 30 August 2019, the Applicant was therefore more than 7 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 Director of Immigration [2016] 2 HKCA 393.

15.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelievred post, I do not see any good reason for her serious delay.

16.As for the merits, if any, of the intended application, as noted above, the Applicant has not put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality 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 for or any merits in her intended application.

17.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.

18.In the Applicant’s case, the Board rejected her claim on its findings of her failure to establish such claim for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 48 of its decision, and in the absence of any error of law or irrationality 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 findings of the Board.  

19.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.     

20.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.Furthermore, the Applicant on 2 March 2021 filed an affirmation requesting to withdraw her leave application, for which she subsequently confirmed in writing that she will have no more torture risk or threats from her enemy as mentioned in her claim and that she wants to return to her home country. 

22.In the premises, and as I am not satisfied for the reasons given 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 serious delay, and given her latest confirmation that the basis for her claim no longer exists, I accede to her request and accordingly dismiss her leave application.

Dated the 11^th day of August 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