Khatun Asma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 528/2019

[2022] HKCFI 2575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 528 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 11 February 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 March 2018 (the “Notice”).

2.The Applicant is a Bangladeshi national, now aged 36. She last entered Hong Kong on 5 January 2016 to work as a foreign domestic helper. Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authorities on 15 February 2016. On 5 August 2016, she raised a non-refoulement claim.

3.In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 13 March 2018, the Director rejected her claims under all four applicable grounds.

4.She appealed to the Board against the decision of the Director in the Notice. By its Decision dated 11 February 2019, the Board dismissed her appeal. On 25 February 2019, she applied for leave to apply for judicial review of the Decision of the Board. She did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed or killed by her husband and his associates upon her return to Bangladesh.

6.The Applicant was born in District Bagerhat in Bangladesh. She had worked as a seamstress before coming to Hong Kong to work as a foreign domestic helper in 2013.

7.She married her husband under a marriage arrangement when she was 19 years old. She gave birth to two daughters who are now living with her mother. Her husband was a leader of the Awami League in the Chitolmari police station area. He did not have a job and used to came home late and drunk. He was an influential person in the area.

8.Six months after her marriage, her husband began torturing her because she did not have a dowry and her father failed to meet his demand for money. Her husband was ill-tempered and assaulted her for no reason. One day in 2011, her husband arrived home with his associates. After she told him that she had opened his wardrobe, her husband got furious and assaulted her. His associates also joined in assaulting her. She fell unconscious. She was taken to a hospital by her neighbours. She was discharged after a week.

9.She stayed with her parents after being discharged from the hospital. Her husband went to her parents’ home to ask for her whereabouts and when they refused to tell him, he and his associates attacked her siblings.

10.One night in 2013, her husband and four or five associates came to her mother’s house. They were armed with knives and sticks. They beat her with sticks in the presence of her family members and her two daughters. Her husband even tried to take out her eyeball. She fled to Mirpur in Dhaka. She treated herself with medicine from a pharmacy. It took her seven months to recover. After receiving five months’ training in Dhaka, she went to work in Hong Kong as a foreign domestic helper. Her husband divorced her in 2014.

11.The Applicant said that she did not make any police report because she thought the police would not help her. She said that the police would only listen to people of the ruling party, ie people from the Awami League and her husband is influential.

The finding of the Board

12.The Board considered the Applicant’s evidence consistent with her claim. It accepted that she had been a victim of domestic violence and that her husband had assaulted her and harassed her family members.

13.The Board noted that her husband came from a wealthy family, was a member of the Awami League and an influential person. It accepted that the local police would likely turn a blind eye to her husband’s conduct. However, it was not satisfied that this by itself meant he was acting in an official capacity or he had received the permission of the government in his ill-treatment of the Applicant.

14.On the basis of credible country of origin information (“COI”), the Board found that although state protection in the Applicant’s home town was limited, effective protection would be available in major cities, where the police is more adequately staffed. It dismissed her claim that her husband would be able to locate her anywhere in the country as speculation on her part. It considered that with her experience as a seamstress and as a domestic helper, the Applicant could safely relocate to Dhaka or other major cities to avoid her husband and his associates. Hence, the Board found she would not face any of the proscribed risks of harm if she relocates to other areas in Bangladesh and her risk of harm is low. Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found that the Applicant is not entitled to protection under any of the four applicable grounds under the USM. It therefore dismissed her appeal and upheld the decision of the Director in the Notice.

Legal principles applicable to judicial review

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

16.The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she objected to the Board’s rejection of her appeal/petition. She had been invited by the Court via its letter dated 21 May 2020 to advise the Court of her first language and to file submissions. She did not respond. The letter was sent to her at her address as stated in her Form 86 and supporting affirmation filed on 25 February 2019. It has not been returned through the post. The delivery service of Hong Kong Post is usually very reliable. There was nothing to suggest the Applicant had moved or has not received the letter.

17.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. In effect, the Applicant is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Bangladesh. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

18.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of credible COI and the case as she asserted. It found that she would not face any of the proscribed risks of harm, if she relocates to other areas in Bangladesh and hence her risk of harm is low. It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

19.For the above reasons, leave to apply for judicial review was refused.

Dated the 19^th day of August 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