Laela Moshammad Runa v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2314/2020

[2021] HKCFI 2863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2314 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 the Applicant in open court.

Order by Deputy High Court Judge P. Li:

1.    Application for leave to apply for Judicial Review be reinstated;

2.    Extension of time for application for leave to apply for Judicial Review be refused; and

3.    Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant first entered Hong Kong on 6/9/2014. She was a domestic helper under a contract of 2 years. Her contract was terminated early on 18/5/2015. She overstayed and surrendered to the Immigration Department on 21/3/2016. She then lodged the non-refoulement claim in this case on 9/12/2016.

2.The Director rejected her claim on 17/8/2018. The TCAB dismissed her appeal on 7/5/2020.

3.The applicant filed the leave application for judicial review on 24/11/2020. She was about 3½ months out of time. Meanwhile, she applied to withdraw her leave application on 22/3/2021 on the reason that she wanted to go home. This court granted the leave to withdraw on 1/4/2021.

4.Later on 21/6/2021, she applied to re-instate the leave application. She indicated that her enemy was still looking for her. They would kill her. She could not return to Bangladesh.

5.In the hearing held on 2/8/2021, she informed this court that a friend of his brother informed her on the phone that the problem had not been resolved. She agreed that she should have contacted her brother directly before deciding to withdraw.

6.In my view, the explanation was vague and appeared to be out of context with her claim. She mentioned nothing about her husband who was the main instigator of the whole incident. I have grave doubt about her reasons. Nevertheless, I grant her leave to re-instate.

Background

7.The applicant was born on 25/1/1985 in Douso Village, Thakurgaon District, Bangladesh. She attained class 9 level. She was a Muslim. She was a private tutor in her home village. She and her family were members of the Bangladesh Nationalist Party (“BNP”). She attended meetings. She was a leader in the village with 50 female subordinates.

8.In 2001, she got married. She had 2 children. Her husband and his family supported the Awami League (“AL”).

9.In 2008, her husband joined the “AL”. He stopped farming and participated in the activities of the party. He started drinking and gambling heavily. He demanded money from her. She and her children were assaulted when she refused his demand. She did not report to the police who would not assist in domestic cases. Besides, she could not afford a bribe.

10.Later in 2009, her husband was desperate to get some money. He tried to force her brothers to transfer their properties to him.[1] He even threatened to kill her younger brother (“Abdul”) for that purpose.

11.In 2013, “Abdul” fled to Dhaka to avoid her husband. “Abdul” was under constant harassment by “AL” people. He eventually disappeared and lost contact with her.

12.In late 2013, she was seriously injured by her husband in an assault. She was hospitalized for 7 days. “Abdul” took her back to her parents’ house after she was discharged. Her husband came with some men. They vandalized her father’s house and assaulted everyone. He threatened to kill her if she did not transfer her father’s properties to him in 2 weeks. He took away her children. Despite all these incidents, she refused to transfer the properties to her husband. She had not thought of divorce for the sake of her children. She sought help from the “BNP” and the police. Both could not assist.

13.She decided to leave Bangladesh to work in Hong Kong. Eventually, she came to Hong Kong on 6/9/2014. Her contract was terminated on 18/5/2015. She overstayed because of fear that her husband would kill her. Eventually, she surrendered to the Immigration Department on 21/3/2016.

14.She had no relatives elsewhere. It would be impossible in Bangladesh for a single woman to relocate. Besides, the AL people would be able to locate her.

15.She had lost contact with her family since 2017. She was told not to return during the last conversation with her family. She did not know any authorities which could help her in Bangladesh.

The decision of the Director

16.The Director found that the future risk of harm was low for the following reasons:[2]

a.     There were persistent assaults by her husband since 2008. She did not need any treatment all along. The applicant was hospitalised in 2013 because of serious injuries. She was discharged after 7 days. There was no severe injury which amounted to “a minimum level of severity’. Her husband had no intention to kill her despite there were plenty of chances.

b.     She was unable to give details as to the role of her husband in the “AL”. She could not identify the other assailants. There was no evidence that the “AL” was involved. There was no evidence that any public officer was behind the incident.

c.     The Director acknowledged that there were incidents of political violence in Bangladesh especially during election time. The police were corrupt and ineffective. The courts were also corrupt and under political influence. However, the ACC [3] was established to tackle corruption. The PRP [4] provided training to improve police investigation and human rights awareness. Police officers and members of the “AL” were prosecuted for corruption. The Human Rights Commission was mandated to investigate abuse of power and took action in courts. The government had passed laws to address violence towards women. There were NGO [5] which provided social assistance and legal aid to victims of gender violence. There was reasonable State protection.

d.     The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country with a population of over 158 million. Given her age and background, she should be able to relocate to cities like Sylhet and Rajshahi. It would be very difficult for her husband and the “AL” people to locate her. In fact, she was safe with the agent in Bogura for 3 months before leaving for Hong Kong.

17.The Director rejected her claim on 17/8/2018.

The decision of TCAB

18.The applicant attended a hearing on 13/1/2020. The adjudicator pointed out that the applicant refused to answer most of the questions. She was unreliable and selective. The following is the main points: [6]

a.     The applicant repeatedly refused the demand from her husband to transfer her share of her father’s properties to him. She even confirmed to the adjudicator that she was not afraid of her husband. Actually, she came to Hong Kong for employment not to flee her country.

b.     In relation to her father’s property, the applicant was inconsistent whether her father had sold his properties to satisfy the demand of her husband. In the NCF, she said she got money from her father to pay her husband. In the TCAB hearing, she said her father refused to sell his land. She even asserted that she stopped her father from giving her money.

c.     The applicant had no right to obtain the properties of her father. It was illogical for her husband to insist and threatened to kill her. It was unreasonable that the applicant did not do anything to trace her children after they were taken away by her husband. She chose to leave Bangladesh instead.

d.     She told the Director that she had lost contact with “Abdul” since 2013. However, she also asserted that “Abdul” took her back to her parents after she was discharged from the hospital in late 2013. It did not make any sense that “Abdul” would risk his life just to do that.

e.     Given that she had a share of her father’s properties, it was unconvincing that her husband had to force “Abdul” to transfer Abdul’s share to him. It was also inexplicable that she refused to give her share to her husband causing so much harm to her family.

f.     The applicant was inconsistent whether her family was rich. She even said she quitted school because her father could not afford her fees.

g.     It was also inexplicable that her husband had forced her to join the “AL”. There was no obvious reason for that.

h.     The applicant admitted to the adjudicator that she came to Hong Kong for employment. She delayed her claim until she overstayed after termination of her contract. The adjudicator rejected her explanation that she feared her employer would sack her if she did so earlier.

19.The adjudicator concluded that the applicant was not a credible witness. She concluded that no credence could be placed on the factual basis of her non-refoulement claim.

20.The adjudicator rejected the applicant’s claim on 7/5/2020.

Judicial review

21.The applicant filed the leave application for judicial review on 24/11/2020. She was over 3½ months out of time. In her affirmation in support of the leave application, she explained that she was informed by the Immigration Department on 14/10/2020 about the TCAB decision. She did not receive any decision from the TCAB.

22.According to the court record, the TCAB decision was sent to her address at Kwai Chung on 7/5/2020. It was a different address from the one given in the letter [7]applying for re-instatement. The new address was at Tsim Tsa Tsui. This was the same address in the Form 86 dated 24/11/2020.

23.There was no explanation when she moved to the new address. There was no information whether she had informed the TCAB of the change. It was her duty to do so. She must bear the consequence of any failure in the mail. I do not accept her explanation.

24.As mentioned above, the applicant was out of time for about 3½ months. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [8]

25.Before the hearing on 2/8/2021 before this court, the applicant filed a written submission on the grounds for relief.[9] She made several major complaints as follows:

a.     She complained that the adjudicator had not analyzed the evidence and considered the claim de novo. I do not agree with this allegation. The adjudicator had set out in detail the evidence during the TCAB hearing. She posed questions to the applicant who refused to answer most of them. She had pointed out the inconsistencies which were significant.

b.     She complained that the adjudicator had relied on outdated information. The adjudicator disbelieved the applicant. She found that the applicant was not truthful. She went on to reject the applicant’s evidence. The applicant failed to establish the factual basis of her claim. Strictly speaking, there was no need for the adjudicator to consider any COI. This complaint is of no substance.

c.     She complained that her enemy was still looking for her. She would be in danger if returned to Bangladesh. This issue was canvassed by the adjudicator who found that she was not under any threat from her husband and his associates. It was surprising that she kept on using ‘her enemy’ to stand for her husband. The complaint appears perfunctory.

26.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

27.The adjudicator had analysed the evidence in detail. There were critical inconsistencies which reflected poorly on the credibility of the applicant. I agree with the conclusion of the adjudicator. The intended judicial review is of no merit.

28.In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.

Conclusion

29.The applicant did not apply for leave within 3 months as required under the law. There was undue delay. Her explanation for the delay is not accepted. The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  There is no good reason to extend the time for the leave application. I refuse leave for the judicial review.

Dated 28^th day of September 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