Case Document

100%Judiciary

HCAL 54/2020

[2022] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 54 of 2020

BETWEEN

	Sunia Rahela Akther	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 arrived in Hong Kong on 7 September 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 August 2015 or within 2 weeks of its early termination, but when her employment was prematurely terminated on 24 November 2014, she did not depart and instead overstayed, and was arrested by police on 1 June 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her step-brother over their land dispute in her home village. She was subsequently released on recognizance pending the determination of her claim, during which she married a local Pakistani man in Hong Kong.

2.The Applicant was born and raised in Village Bishahonath, Sylhet, Bangladesh where her father later divorced her mother and left for UK where he remarried and formed a new family with children from his second wife, while her mother remained living in the home village with the Applicant and her siblings inheriting some property left for them by the Applicant’s father.

3.Later one of her father’s sons from his second marriage had broken some law in UK and fled to the Applicant’s home village in Bangladesh, and in 2010 he started to demand that the farmland which the Applicant’s father had left behind to her family be transferred to him, and when the Applicant and her family refused, her step-brother threatened her and her family that her siblings later gave up their shares and fled to other places, and when the Applicant still refused to do so, her step-brother on one occasion beat her with his belt until he was restrained by other people.

4.After the assault the Applicant fled home to take shelter in her aunt’s place in Sylhet District where she made arrangements to work as a foreign domestic helper in Hong Kong, and on 7 September 2014 she departed Bangladesh for Hong Kong to start her employment, but when it was prematurely terminated on 24 November 2014, the Applicant was afraid to return to Bangladesh and so she overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 September 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 23 October 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 assessed the level of risk of harm from her step-brother upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that in any event it was a private land dispute between them 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 home district in large cities such as Dhaka where it would be difficult if not impossible for her step-brother to locate her.

7.On 9 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which the Board found to be a few days late but allowed the late filing of her notice of appeal, but for which the Applicant failed to attend 3 scheduled hearings before the Board due to medical reasons, and in the absence of any request for further oral hearing or any objection from her for the Board to deal with the appeal on papers without any further oral hearing, the Board proceeded to deal with her appeal in her absence and on papers, and on 5 December 2019 it dismissed her appeal and also confirmed the decision of the Director.

8.In its decision the Board found inconsistency and discrepancies in the Applicant’s claim based on the materials and information previously submitted by her to the Director and available before the Board but which the Applicant failed to attend any of the scheduled oral hearings to clarify or explain them to the Board that it doubted the credibility of her claim, and that in any event it was a private land dispute between her and her step-brother without any official involvement that state/police protection would be available to her upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other area 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 6 January 2020 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 in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward 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 25 February 2022 filed an affirmation requesting to “close her application” as she has been granted her dependent visa based on her husband’s resident status by the Immigration Department and therefore it is no longer necessary for her to seek non-refoulement protection.

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 in view of her latest request, I accordingly dismiss her leave application.

Dated the 31^st day of March 2022.

(K.H. LI)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 31 March 2022 Sunia Rahela Akther Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31 March 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14321/18/11/164/B1673 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3733/18 (Formerly RBCZ 11848/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)