Khatun Mst Ruzina v. Torture Claims Appeal Board

HCAL 27/2019

[2022] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 27 of 2019

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 36-year-old national of Bangladesh who last arrived in Hong Kong on 18 October 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 October 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 September 2016, she did not depart and instead overstayed, and was arrested by police on 6 December 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 some local supporters of the political party Awami League (“AL”) as her husband supported their rival Bangladesh Nationalist Party (“BNP”) and refused to join their party. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Moddher Char, Taraitia Bazaar Dewanganj, Jamalpur, Bangladesh. After leaving school she worked as a tailor, married her husband and raised a family of 2 children in her home village, and followed her husband to support BNP regularly attended their local meetings and rallies together with her husband.

3.After AL came into power upon winning the general election, one day in 2014 some of their local supporters came to the Applicant’s home to demand her husband to change his political affiliation to join their party, and when her husband refused, they attacked him with clubs and sticks, and when the Applicant tried to intervene, they also beat her, and before they left, they warned that next time they would kill her husband if he still refused to join their party.

4.Several days later the same AL people came to the Applicant’s home again with the same demand, and when her husband still refused to join their party, they tied him to a tree and beat him and broke his legs, and before they left they also set fire to their home.

5.After the fire the Applicant and the family moved to stay in her parents’ home in the same village, but on the next day the AL people came again to warn her husband to seriously consider their demand to leave BNP to join their party, and before they left, they warned that next time they would rape and kill the Applicant if he still refused to do so.  

6.Fearful for her safety, the Applicant’s husband advised her to leave the country to avoid the threats, and so she fled to Dhaka and then to Bogra where she made arrangements to leave the country for Hong Kong to work as a foreign domestic helper, which she eventually did on 20 April 2015, but when her last employment was prematurely terminated on 27 September 2016, she 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 15 August 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 12 September 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”).

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 and substantial risk of her being harmed or killed by those local AL supporters upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those AL supporters to specifically target the Applicant given that she was just an ordinary supporter of BNP without any official post in the party, that in the absence of 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 148,000 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 Chittagong where it would be difficult if not impossible for those local AL supporters to locate her.

9.On 22 September 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 24 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and exaggerations in the Applicant’s evidence as to her claimed fear of harm from those AL supporters for her leaving of Bangladesh to come to Hong Kong to work as a foreign domestic helper or for her failure to depart upon the termination of her last employment contract, but was prepared to accept her claim of being a BNP supporter and her husband of having been targeted by the local AL supporters for threats or harassments, but found in the absence of any official involvement that state/police protection would be available to the Applicant if needed 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.      

11.On 4 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

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

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

(3) Procedural unfairness in 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) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that with the lack of credible source of information had resulted in groundless speculation that it would be safe for the Applicant to return to her home country; and

(6) That the Applicant was not given the opportunity to put forward her submission at the oral hearing or to submit written submissions for her appeal. 

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 how did the Board unlawfully fetter its discretion or act procedurally unfair or how was the decision unfair or unreasonable, or what source of news or COI relied on by the Board were unofficially recognized or were hearsay or outdated, or how was the Applicant not given any opportunity to make her submissions at her appeal hearing before the Board when in fact she was able to give evidence and answer numerous questions from the Adjudicator during the hearing that there is simply no suggestion that she was unable to make her submissions if she so wished, nor did she ever make any request to make written submissions to the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as she also failed to attend the hearing of her present application without explanation, I do not find any of her 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 fact is that it has been correctly established by both the Director and the Board in their respective decision 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.                

15.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.

16.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 7^th day of July 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