Kohinoor v. Torture Claims Appeal Board

HCAL 2067/2019

[2021] HKCFI 3717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2067 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 35-year-old national of Bangladesh who last arrived in Hong Kong on 23 October 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 4 February 2017 she did not depart and instead overstayed, and on 20 February 2017 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 former husband for divorcing him against his wish and/or by supporters of the political party Awami League (“AL”) over some political disputes that they had with her current husband who supported their rival Jamaat-e-Islam (“JeI”).  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Batuli, District Dhaka, Bangladesh.  After leaving school she married her former husband and raised their family with a daughter in his home village in the same district.

3.However during their marriage she was treated badly by her abusive husband that in 2009 she left with their daughter and moved to another town, but later when her husband came and took their daughter away to try to force her to return, she refused and fled to another town, and in 2010 she obtained a divorce against him, and later when he found out about it, he threatened to kill her if he saw her again.

4.In late 2011 the Applicant married her current husband but soon discovered that he was a JeI member who had been hiding from the AL people for fear of being harmed or killed by them due to some political disputes between them, and fearing that they would eventually be located by the AL people, the Applicant in 2015 made arrangements to come work in Hong Kong as a foreign domestic helper, and so on 7 May 2015 she departed Bangladesh for Hong Kong, but when her last employment contract was prematurely terminated on 4 February 2017, she was afraid to return to Bangladesh and instead overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 February 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 28 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 reliable evidence of any threats of harm from her former husband or those AL people other than hearsays or her own speculations, that in any event any such risk of harm from them upon her return to Bangladesh was assessed to be low due to the absence of or low intensity and frequency of past ill-treatment from them, 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 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 home district in large cities such as Chittagong where it would be difficult if not impossible for her perceived enemies to locate her.

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 30 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 5 July 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no reliable evidence of any direct threats made against the Applicant either by her former husband or the AL people who were at worst only after her present husband for political reason in which she herself had absolutely no involvement, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant her upon her return to Bangladesh as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds. 

9.On 19 July 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, and in her supporting affirmation of the same date she just attached copies of the decisions and other documents from her hearing bundle for her appeal before the Board but without putting forth any proper ground for her intended challenge.  As such 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 her intended challenge.

10.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.

11.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.  

12.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.

13.Furthermore, the Applicant recently on 19 November 2021 filed an affirmation to request to withdraw her application as her problems in her home country have been resolved.

14.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 latest confirmation that her “problems” in her home country have been resolved, I accede to her request and accordingly dismiss her leave application.

Dated the 9^th day of December 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