Begum Reshma v. Torture Claims Appeal Board and Another

HCAL 3030/2019

[2021] HKCFI 3401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 3030 of 2019

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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 last arrived in Hong Kong on 25 April 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 25 April 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 July 2018, she did not depart and instead overstayed, and on 6 November 2018 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/or her creditor over her outstanding debts and/or by the family of the man who tried to rape her but died in her resistance and/or by her step-brothers due to disputes over inheritance of her father’s estate. 

2.The Applicant was born and raised in Bagerhat District, Bangladesh.  After leaving school she worked as a tailor, married her husband in 2002and moved to his home in Village Kazdia, District Khulna where they raised a family with 2 children.

3.After her marriage the Applicant discovered that her husband was an alcoholic and a drugs abuser who frequently demanded money from her and her family for his habits, and would become violent and abusive towards her by beating her at will, causing her bruises and injuries all over her body that required frequent visits to the local hospital.

4.To satisfy her husband’s financial demands, the Applicant in 2010 borrowed a loan from her creditor for her husband to start his own business, but later when she had difficulties to repay her loan, she therefore came to work in Hong Kong in 2014 as a foreign domestic helper by regularly remitting money to her husband for her loan repayments and for his own use. 

5.In March 2018 during her home visit, she was attacked by a neighbor who claimed that her husband had sold her to him for sex, and during her resistance the Applicant injured the men with a fish cutting tool and fled to Dhaka to take shelter in her sister’s place before returning to Hong Kong to continue with her employment, during which she heard that the man had subsequently died from his injury, and she fears that his family would seek revenge against her upon her return to Bangladesh.

6.Later in the same year her father passed away leaving some properties in his estate which had led to disputes amongst the Applicant’s siblings over their inheritance during which her sister was attacked by the stepbrothers, and as a result the Applicant also became fearful that she would be harmed by her stepbrothers over the same issue, and when her last employment was prematurely terminated on 26 July 2018, she was unable to remit any more money to her husband and was therefore afraid of being harmed or killed by him and by her creditor, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

7.By a Notice of Decision dated 19 June 2019 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of her claim of fear of harm from her perceived enemies in the absence of any reliable evidence of any threats from any of them other than her own bare assertions, that in any event the level of risk of harm from any of them upon her return to Bangladesh is assessed as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her alleged problems with her husband or creditor or her siblings were either private domestic or family or monetary issues without any official involvement that state or police protection would be available to the Applicant if resorted to, while there is no reliable evidence that she is ever involved in any criminal offence that she is being pursued by the police and given her frequent trips in and out of the country without any problem, 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 159 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 her perceived enemies to locate her.

9.On 2 July 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which she attended an oral hearing on 17 September 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 9 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found numerous inconsistencies and discrepancies in the Applicant’s evidence as to her claim of fear from her husband and other alleged enemies which were based essentially on her own bare assertions, hearsays or own speculations without any other reliable or documentary evidence in support that it did not consider her a credible or reliable witness that it rejected her claim of fear of harm from her husband or any other sources as incredible or unreliable, and that in any event in the absence of any official involvement that state/police protection would be available to her upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.       

11.On 15 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1)        that the Director and the Adjudicator reached their decisions wrongly and which were unfair and unreasonable;

(2)        that the Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting her non-refoulement claim in that Applicant was tortured at the behest of the state law enforcement agencies as well as those high up in the political circle that the state would be rendered liable to her by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)        that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)        that the Director failed to consider or give enough weight to the relevant COI which support the Applicant’s aversions that the police in her home country would not be able to protect which is a clear case of unfair attitude which is in itself enough to render his decision void in failing to recognize that corruption and incompetence of the administration in her home country is still a very serious problem which various human rights organization have complied reports on the matter which stated testament with her assertions;

(5)        that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(6)        that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably require her to respond to questions that she was not in a position to offer any response and that she also failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution effectively persecution by the state; and

(7)        that the Adjudicator made a ruling to dismiss the Applicant’s appeal to the Board based on findings which the Adjudicator ought to allow the appeal and her decision was thus irrational.   

12.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they are relevant to her claim on the basis of even her own case, or how the Director or the Adjudicator had erred in their decisions, or in what way did they reach their decisions wrongly or that their decisions were unfair or unreasonable, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why would state acquiescence be relevant to her claim of fear of harm which were on the basis of her own case of all private domestic or family or monetary disputes without any official or state involvement whatsoever.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13.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. 

14.In the Applicant’s case, as noted above 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 42 – 65 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.   

15.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.                 

16.In the circumstances, 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.

17.Furthermore, the Applicant on 15 October 2021 filed an affirmation to request to withdraw her application as she no longer has any problem in her home country. 

18.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 view of her latest confirmation that she has no more problems in her home country, I accordingly dismiss her leave application.

Dated the 12^th day of November 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