Sultana Papia v. Torture Claims Appeal Board

HCAL 1812/2020

[2022] HKCFI 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1812 of 2020

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 40-year-old national of Bangladesh who last arrived in Hong Kong on 4 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 June 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 December 2014, she did not depart and instead overstayed in Hong Kong, and more than 6 months later on 2 July 2015 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 for political and domestic reasons. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Boalmari, District Faridpur, Bangladesh. After leaving school he married her husband and moved to his home village in neighbouring Village Joydebpur where they raised a family with 2 children.

3.However soon the Applicant discovered that her husband was a drug addict and an alcoholic as well as a womanizer, and was often abusive towards her that eventually in 2007 the Applicant left her husband to return to her parents’ place in her home village.

4.Thereafter the Applicant worked as a kindergarten teacher in her home village, and started to support the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and rallies.

5.In about 2011 her husband who supported the political party Awami League (“AL”) came with his uncle to demand that the Applicant should stop supporting BNP and instead join their party, and that she should also allow him to take a second wife, but when she refused, her husband then together with his fellow AL supporters beat her violently and also threatened to kill her.

6.After being beaten by her husband and his fellow AL supporters several times, the Applicant became fearful for her life, and in order to avoid further assaults, she therefore applied to work in Hong Kong as a foreign domestic helper, which she eventually did in October 2013 when she departed Bangladesh for Hong Kong, but after her last employment was terminated on 8 December 2014, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and subsequently in July 2015 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 December 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged medical reason.

7.By a Notice of Decision dated 26 January 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”).

8.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 husband or his uncle or their fellow AL supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that her problems with her husband were essentially private domestic disputes 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 158 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 Khulna where it would be difficult if not impossible for her husband or his uncle or fellow AL supporters to locate her.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 September 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found on the Applicant’s own concession of no further threats from her husband who had passed away in 2019, while it doubted her claim of fear of harm from his uncle who had also threatened her to quit BNP to join AL due to her vague inconsistent and conflicting evidence that it considered that she was not a credible witness and that she had fabricated such a claim to create a basis upon which to apply for non-refoulement protection, and concluded that she would not face any real risk of any of the proscribed harms from her uncle or any Al people upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

11.On 11 September 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in the Board’s failure to consider the fear that the Applicant would face in her home country;

(2)  Procedural impropriety in the Board’s failure to consider the COI that killings and murders are very common every day in the Applicant’s home country by the government’s enforcement department; and

(3)  Error/misdirection in law in the Board’s failure to consider the Applicant’s claim under BOR 3 Risk that she would face genuine risk by the current government upon her refoulement.

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 apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board fail to consider the fear that the Applicant would face in her home country, or what relevancy would any possible risk of harm from the Bangladeshi government to her claim which on the basis of her own case at the highest was a private domestic dispute between her and her husband or his uncle without any state or official involvement. 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, the Board rejected her claim of fear of harm from her husband’s uncle essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 42 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 also been correctly established by the Director in his decision that the risk of harm from her husband or uncle 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 eth 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.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 recently on 19 April 2022 wrote a letter to the Court requesting to withdraw her application as she wants to return to her home country as her problem has been resolved.

18.In the premises, 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 she no longer face any problem in her home country, I accordingly dismiss her leave application.

Dated the 19^th day of May 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