Shanaz v. Torture Claims Appeal Board

HCAL 2508/2018

[2022] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2508 of 2018

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 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 last arrived in Hong Kong on 27 October 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 October 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 August 2016, she did not depart and instead overstayed, and was arrested on 22 February 2017 for overstaying and undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 10 weeks, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Village Alipur, District Faridpur, Bangladesh. After leaving school she dated her Hindu boyfriend secretly without informing her parents due to their different religions, and in early 2014 she eloped with him and secretly registered their marriage in Rajbari, Faridpur.

3.Later after discovering her marriage, her parents disowned the Applicant from the family, and upon informing her husband, instead of comforting her, he instead forced her to convert her religion to Hinduism, and when she refused, he started to be abusive and violent towards her by slapping punching and kicking her at will.

4.By mid-2014 the Applicant found herself no longer able to tolerate her husband’s abuses and ran away from home, but soon she was found by her husband and his friends who then beat her and cut her with a knife in her abdomen, and then dragged her back to his home where he locked her inside a dark room without food or water.

5.Eventually in November 2014 the Applicant was rescued by her friends who dug a tunnel under her husband’s home through which she was able to make her escape during her husband’s absence from the house.    

6.The Applicant then fled to District Mymensingh where she made arrangements to leave the country by applying to come to Hong Kong to work as a foreign domestic helper, which she did on 28 December 2014, but when her last employment was prematurely terminated on 27 August 2016, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong, and upon her subsequent arrest for overstaying and undertaking unauthorized employment for which she was convicted and sentenced to prison for 10 weeks, and upon her discharge from prison and was transferred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 31 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 found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband upon her return to Bangladesh due to the absence of reliable evidence to corroborate her bare and incredible assertions of events of ill-treatments by her husband and her escape through a tunnel underneath his house prior to her departure of the country, that in any event even if true that it was a private domestic dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Bangladesh, 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 Dhaka where it would be difficult if not impossible for her husband to locate her.

9.On 13 February 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 26 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence as to her accounts of her relationship with her alleged husband and his ill-treatments and her escape through a tunnel dug by her friends under his house vague, inconsistent and implausible, that it was incredible that she was unable to disclose any details about her husband such as his age or date of birth or anything about his parents as well as the significant differences in her evidence between those given to the Director and to the Board that it did not consider her to be a truthful witness, and that the credibility of her claim was further undermined by her failure to raise it upon her arrival in Hong Kong until much later and only after her arrest that it concluded that she had fabricated her account of her marriage to her husband and his subsequent abuses so as to make up a basis for her claim of fear of harm that she would face upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.       

11.On 8 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation and written submissions she put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5) In dismissing the Applicant’s appeal/petition the is no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration of the risk of the Applicant’s right to life under BOR 2 being violated; and

(6) That the Adjudicator relied on cases which were outdated considering the dramatic changes with the lack of credible source of information resulted in making groundless speculation.  

12.These are however all just broad and vague assertions of the Applicant containing several pages of 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 that it was unfair or unreasonable, or in what way did the Board unlawfully unfetter its discretion or the Adjudicator act in a procedurally unfair manner, or what relevancy would BOR 2 Risk be to her claim when even on the factual basis of her own case at the highest and if true that it was just a private domestic dispute between her and her husband without any official involvement that it simply would not engage the BOR 2 ground in its limited scope, or what source of information did the Board rely on that were outdated. None of these bare assertions were elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing without any explanation that I do not find any of her grounds or complaints 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 essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 – 62 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 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 to challenge the finding of the Board.  

15.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm 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 the 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.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.

17.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 24^th day of June 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