Shahanaj Begum Most v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1508/2021

[2022] HKCFI 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1508 OF 2021

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

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

Observations for the Applicant:

1.The applicant entered Hong Kong on 13/2/2017 under a domestic helper contract. Her contract was terminated on 10/2/2018. She overstayed and was arrested by the Immigration Officers on 2/7/2019. She was sentenced to imprisonment for 2 months on 1/8/2019.[1] She then lodged the non-refoulement claim in this case on 2/9/2019.

Background

2.The applicant was born on 10/3/1983 in Mitha Pukur Rangpur, Bangladesh. She had education for 5 years. She was a Muslim. Her 1^st marriage ended up in divorce. She had 2 children. She married again with Ataulla (“A”) and had 2 children. She could not recall the date of her marriages. She had worked as a domestic helper in Dhaka, Lebanon (3 years) and Hong Kong.

3.One year after her 2^nd marriage, during the village election, she discovered that “A” was a supporter of “AL” while she supported “JEI”.[2]  “A” told her to change allegiance to AL but she refused. “A” started assaulting her at home. It was about 10-11 years ago [3]. He even applied electric shock on her. The assault might last for 2-3 hours. Throughout these years, she consulted a doctor twice at a hospital. She took medicine and recover in a month. She reported to the police for about 5 times. She gave a statement to the police. She did not follow up.

4.She had filed a complaint of domestic violence in court. She did not follow up as she had gone to work at Lebanon. She also said she could not afford a bribe to the court staff.

5.Later, “A” asked her to borrow 1.6 million Taka from Aminul for buying a truck. She did not know why “A” did not borrow by himself. She could not recall the interest rate but she had to repay in a year.

6.A year later, Aminul started to ask for repayment at her home. He would leave when she told him she was unable to repay. She did not know whether the loan was repaid after she left the country.

7.Later, “A” married another woman. He also accused her of having an affair. He threatened to kill her. She fled to her sister’s place for one day. Then she filed a case in court. Finally, she left to work in Lebanon. She could not recall the length of this period.

8.After she completed her contract in Lebanon, she returned to work at Gazipur. She learned that “A” had assaulted her sister for helping her. She also learned from a neighbor that “A” knew her whereabouts. He would come to locate her. She thus moved to another training center in Tangail. She finally left Bangladesh in February 2017.

9.She learned from a friend recently that “A” was still angry with her. She did not contact her family. She knew her sister was safe.

10.She could not relocate as supporters of JEI would be oppressed by AL. The police would not protect supporters of JEI. She disputed the measures mentioned in the COI. They were not implemented.

11.She submitted a medical certificate which concerned an assault in 2015 when she worked in Gazipur. She asserted that “A” assaulted her. The certificate was sent to her by the employer in Gazipur through her mobile phone several days before the interview with the Director. She was given medication and dressing of the wounds in that incident. She could not recall the details. This incident was not mentioned in the NCF as she did not have the certificate then.

12.She mentioned in the interview that “A” had filed a false claim against her and her family for taking 1.2 million from him. She did not have any update of that case. She was afraid she would be held responsible for that.

The decision of the Director

13.The Director found that the risk of ill-treatment by “A” was low. The Director based on the following reasons:[4]

a.     The problem between “A” and the applicant was domestic in nature. There was no evidence that any government official was involved. There was no evidence that the AL was involved. There appeared no reason that “A” would ill-treat her merely because she refused to change allegiance to AL.

b.     Even assuming there was a loan from Aminul. It was a private dispute. Aminul had never threatened or assaulted her even when she failed to repay. She had no update about the loan after coming to Hong Kong. There was no evidence Aminul still held her liable to repay. The fear of Aminul was far-fetched.

c.     During the interview, she mentioned an assault by “A” in 2015 and a false claim of 1.2 million Taka against her and her family. These 2 incidents were not mentioned in the NCF. The Director doubted whether it was true. Even assuming that she was beaten in 2015, she could arrange a job to Hong Kong and had training beforehand. She was not affected at all.

d.     Despite she claimed that “A” had assaulted her sister, her sister was fine in Bangladesh. She had not contacted her family members after coming to Hong Kong, there was no evidence that they were harassed by “A”. All these showed that her future risk of harm was not real.

e.     She asserted that “A” had assaulted her many times during the past. She only consulted a doctor twice. Her injuries were not serious. She even chose to return to work at Gazipur. This showed the risk of harm from “A” or Aminul was not imminent.

f.     She asserted that there was a false claim filed against her and her family. There was no evidence to support this. She did not follow up even when she had a lawyer. The Director did not accept it was genuine. There was no evidence that she was wanted because of this false claim. In fact, she was never a target of the government.

g.     Having considered various COI, the Director acknowledged that there were incidents of harassment on members of BNP by AL. The Police was inefficient, corrupt and biased in favour of AL. There were human rights abuses. However, there were programs to tackle police training with funding from UNDP [5]. The ACC[6] had been active in investigating corruption in the government. The NHRC[7] was responsible for tackling human rights abuses. There were news reports that the police had been taking action against AL members and police officers when they committed offences. There were complaint channels to higher authorities. The Constitution stated that all citizens were entitled to equal protection under the law. The criminal justice system was functioning. There were NGO giving legal services to those in need. There was no evidence that the government acquiesced criminal offences. The Director concluded that there was reasonable State protection.

h.     The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country of 148,000 km² and the population was over 159 million. Given her age and experience, she should be able to relocate to cities like Tangail and Rangpur. It would be very difficult for “A” to locate her.

14.The Director rejected her claim on 26/11/2019.

The decision of TCAB

15.The applicant attended a hearing on 23/10/2020 before the TCAB. The adjudicator pointed out the following aspects which showed that the appellant’s evidence was not reliable: [8]

a.     Although “A” assaulted her because she supported JEI. There was no evidence that the AL was behind the violence. There was no evidence that the AL-controlled- government played any part in it.

b.     The applicant had not contacted “A” for more than 5 years. “A” had married another woman. There was no evidence that “A” was still interested in her. Her family was safe in Bangladesh. The risk of harm from “A” was low.

c.     The harm caused to the applicant did not amount to a minimum level of severity. She recovered quickly after various assaults.

d.     The applicant had complained to the police. She had filed a domestic violence case in court. However, she chose not to follow up. The assertion that the police would not help her was a baseless speculation.

e.     This was a case of domestic violence without any political interference. The conduct of “A” was not backed by the State or public officials. There was no Convention reason for her ill-treatment. There was sufficient State protection available to the applicant. There was no real risk of persecution.

f.     There was no evidence that the applicant had committed any criminal offence. She would not face capital punishment. Given the evidence, she was not personally at risk of arbitrary deprivation of life if refouled. BOR 2 claim failed.

g.     The applicant was never subject to abuse at very high level of torture or CIDTP. BOR 3 claim failed.

h.     The torture as asserted by the applicant was not within the definition under s.37U of the Immigration Ordinance. There was no evidence that the government failed to discharge its duties or tolerate unlawful conducts as a systemic practice. “A” was not acting in any official capacity. The issue of acquiescence did not arise. There was no consistent pattern of gross and flagrant violations of human rights. The incidents of violence were localized. Khulna or Chittagong were reasonable options for relocation.

16.The adjudicator rejected the applicant’s claim on all applicable grounds on 11/1/2021.

Judicial review

17.The applicant filed the leave application for judicial review on 1/11/2021. In her affirmation in support, she made no specific complaint about the TCAB. She was more than 6½ months out of time. She should have first sought an extension of time.

18.She wrote to this court in a letter dated 6/12/2021. She had lost all her documents after she was arrested in November 2020. She was detained in CIC and would like to be released.

19.In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [9]

20.The applicant did not apply for extension of time. She did not explain the reasons for the delay. Her letter mentioned above adds nothing to her claim. Detention in CIC is a matter for the Director.

21.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.

22.The adjudicator had analysed her case in detail. The applicant was not reliable. The evidence could not support any claim of protection. I agree with the findings of the adjudicator that there is no real risk of harm.

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

Conclusion

24.The applicant did not apply for leave within 3 months of the TCAB decision. There was undue delay. She did not explain.  The intended judicial review is of no merits.  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 intended judicial review.

Dated 5^th day of January 2022

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