Adhikari Sreemoti Surubala v. Torture Claims Appeal Board

HCAL 1/2019

[2021] HKCFI 3082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1 of 2019

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 36-year-old national of Bangladesh who arrived in Hong Kong on 30 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 April 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 February 2015, she did not depart and instead overstayed, and on 29 February 2016 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 her abusive husband and his family over political issues. She was subsequently released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised in Village Tepriganj, District Panchagarh, Bangladesh.  After leaving school she worked in her home village and supported the political party Bangladesh Nationalist Party (“BNP”), and in 2000 she married her husband and moved to his home in Village Maddho Chatnai, District Nilphamari where they resided with his parents.

3.After the marriage the Applicant discovered that her husband and his parents were supporters of rival political party Awami League (“AL”) which led to frequent disputes amongst them over their different political views during which her husband would become abusive and violent by beating her and threatening to kill her, while his parents also scolded her due to their different political views.   

4.To avoid further domestic abuses and violence at home, the Applicant applied to work as a foreign domestic helper in Hong Kong, and on 30 April 2014 she departed Bangladesh for Hong Kong to commence her employment contract, but when it was prematurely terminated on 4 February 2015, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.By a Notice of Decision dated 22 February 2018 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of harm from her husband and parents as she perceived is real and foreseeable upon her return to Bangladesh as her credibility as to alleged support of BNP were found to be of doubt, that in any event her problems with her husband and his parents were private domestic 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 157 million people spread across a vast territory of more than 130,000 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 husband’s home district in large cities such as Dhaka where it would be difficult if not impossible for her to be located.

7.On 7 March 2018 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 13 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 24 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board considered the Applicant’s evidence to be inconsistent, vague and confused that while accepting that she might have been abused by her husband and his parents that it doubted the credibility of her claim of fear of harm from them upon her return to Bangladesh, that there is no reliable evidence of any intention of her husband or his parents to harm or kill her in what is essentially a private domestic dispute without any official involvement that state/police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to safely move to other area without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

9.On 2 January 2019 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 or supporting affirmation at that time until subsequently in her skeleton submissions dated 27 May 2021 when she put forth the following grounds for her intended challenge:

(1) that the Adjudicator was unreasonable in making speculative findings with regard to the assessment of risk to the Applicant;

(2) that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and also failed in his duty of joint endeavor by referring to only one source of COI namely the World Population Statistic website which only provided basic information about the city of Dhaka and could not have assisted the Adjudicator in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation and had no bearing on whether the Applicant was at risk of political violence from the AL people;

(3) that despite the Applicant having clearly indicated that she feared persecution due to her political views and opinions the Board failed to investigate and/or consider the COI related to political persecution in Bangladesh and in particular it placed no weight on direct relevant COI that was before the Board showing police targeting opposition supporters in run up to elections and arbitrary arrests and detention which often linked with political demonstration;

(4) that the Adjudicator made mistake of facts and/or failed to take a relevant factor that the Applicant’s risk of harm which emanated from her political opinion generally as it is evident from the decision that the Adjudicator considered the basis of the Applicant’s claim to be the “grudge” harboured by the AL people and accordingly throughout the decision the Adjudicator consistently attributed the Applicant’s fear solely to the incidents of the 2001, 2008 and 2014 and 2018 elections notwithstanding the fact that the Applicant was in fear of harm from her membership in BNP and the risk of harm at the hands of the AL members in the confrontation on election day merely being a triggering event, and by limiting the basis of the Applicant’s claim in this way, the Adjudicator asked the Applicant the wrong question in the assessment of risk and failed to properly assess the risk of harm from the AL people as an opposition political party in the context of political violence in Bangladesh;

(5) that by tying the risk of harm solely to the events of 2001 the Adjudicator failed to properly address the risk of further harm on the basis of the Applicant’s political opinion that is ongoing and without temporal limit; and

(6) that the Adjudicator failed to properly set out and assess the feared harm arising from the Applicant’s political opinion in support of the Jatiyo Party generally was a failure to address a central and material issue in the Applicant’s appeal/petition.   

10.These grounds however appear to me to have been just copied from some application of another claimant from Bangladesh but with an entirely different factual background or basis, and that on close scrutiny that they are wholly irrelevant to the Applicant’s own claim even on her own case at the highest, as there was never any claim of any threats of fear of harm from the AL party or their supporters over any political opinion of the Applicant or any mention of events during elections in any of those years referred to in Grounds (4) or (5) or of any support from her of the Jativo Partyreferred to in Ground (6) when the Applicant’s claim was based wholly on domestic abuses from her husband or his parents albeit arose from her support of BNP but with absolutely nothing to do with the AL party or their people or the Jativo Party that I do not find any of these grounds applicable to the Applicant’s claim or that any of them is reasonably arguable for her intended challenge of the Board’s decision.

11.As such and in the absence of any error of law or irrationally 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 her intended challenge. 

12.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. 

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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, 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.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.Furthermore, the Applicant recently on 23 September 2021 filed an affirmation to request to withdraw her application as her problem has been resolved and that she wants to return to her home country as soon as possible.

16.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her recent confirmation that the basis for her claim no longer exists, I accede to her request and accordingly dismiss her leave application.

Dated the 22^nd day of October 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