Nasrin Mst Shamema v. Torture Claims Appeal Board

HCAL 370/2019

[2022] HKCFI 1240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 370 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Bangladesh who arrived in Hong Kong on 1 January 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 January 2018 or within 14 days of its early termination, but after her employment was prematurely terminated on 12 April 2016, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 13 May 2016. 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 husband’s uncles due to their dispute within his family over the inheritance of his grandfather’s farmland in their home village.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a village in Dokhin Palash Bari, Dakshin Palash Bari, Chirirbandar, Dinajpur, Bangladesh. After leaving school she married her husband and moved to live with him and his mother in Bahadur Bazar, Dinajpur.

3.In late 2010, her mother-in-law and brothers started to discuss the distribution of their father’s estate including the farmland in their home district which led to continuing dispute over the next several years which boiled over one day in March 2015 when her husband and mother-in-law were attacked by the brothers with machetes, but the Applicant managed to flee from the scene to take shelter in a friend’s place in Dhaka.

4.When she witnessed that her husband had died from his injuries sustained from the attack, the Applicant became fearful for her life, and so she made arrangements to leave Bangladesh by applying to work as a foreign domestic helper in Hong Kong, which she eventually did when she departed on 1 January 2016 for Hong Kong to start her employment, but when her employment was prematurely terminated on 12 April 2016, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and after 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 20 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 31 October 2017 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’s uncles is real and foreseeable upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that it was doubtful that if indeed the uncles had committed murder of the Applicant’s husband that they would not have been arrested and prosecuted by the Bangladeshi police or authorities, that in any event it was a private land dispute within her husband’s family with nothing to do with the Applicant or 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 she had stayed before without incidents and where it would be difficult if not impossible for her husband’s uncles to locate her.

7.On 9 November 2017 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 10 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found the Applicant’s evidence inconsistent and different from those previously provided by her to the Director that it doubted the credibility of her claim of land dispute amongst her husband’s family which was also considered as incredible and defying logic that the Board did not accept her claimed fear of harm to materialize upon her return to Bangladesh, that in any event even if her such claim were true that it was a private land dispute within her husband’s family without any official involvement that the Bangladeshi police would have stepped in and arrested the uncles if they had indeed murdered her husband, and that if necessary state/police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other areas away from her husband’s home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.       

9.On 11 February 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 stated that she is not satisfied with the decision as she still has problem in her home country that she cannot return but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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 if true 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.In the premises 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.

13.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 27^th day of April 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