Marma Koijare v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 459/2022

[2022] HKCFI 2506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 459 OF 2022

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 May 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Bangladesh.  She entered Hong Kong on 4 August 2016 as a foreign domestic helper and was permitted to remain until 4 August 2018 or two weeks after termination of the employment contract, whichever was earlier.  On 9 October 2016, her employment contract was prematurely terminated.  She was required to leave on or before 23 October 2016. She did not depart and had overstayed since 24 October 2016.  On 27 April 2017, she was arrested by the Hong Kong police for trafficking in a dangerous drug and for overstaying.  By way of written representations dated 4, 13 and 14 September 2017 respectively, she lodged a non-refoulement claim.

5.The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her husband, Geothoy Marma, because she discovered his extra-marital affair with another woman named Maya.  In short, the applicant entered into the arranged marriage with Geothoy in 2010.  Initially, their marriage was harmonious.  In around 2014, she found out about Geothoy’s affair with Maya.  Since then, Geothoy became abusive.  The applicant could not stand the abusive acts and informed her in-laws who then scolded Geothoy.  Later, the villagers knew about Geothoy’s wrongdoings, which infuriated Geothoy.  Geothoy threatened the applicant and thus she escaped to another village.  Thereafter, the applicant learnt that Geothoy joined Shanti Bahini and vowed to kill her with the group’s help.  In around 2015, the applicant noticed that she was tailed by some unknown men.  Out of fear, she eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 12 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) the applicant’s conducts showed that she was not in fear of her claimed risk [15]; (iii) her dispute with Geothoy was private in nature [16]; (iv) state protection would be available to her [17]; and (v) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 29 April 2022, the Board conducted an oral hearing for her appeal, during which she supplemented her claim with additional information and clarified certain matters [44]-[45]. 

9.Having considered the evidence, the Board found that the applicant’s claim was not substantiated.  The Board noted that, ever since the applicant left Geothoy in 2014, they had ceased contact.  In particular, when the applicant returned to Bangladesh in 2016, her husband never contacted her nor did the alleged group Shanti Bahini attempt to locate her.  Further, it considered that the applicant’s alleged physical harms did not attain the minimum level of severity.  Meanwhile, it was the applicant’s pure speculation that the police would not assist her [46]-[59].  As a result, the Board rejected the applicant’s claim on the ground of Torture risk and, for the same reasons, the remaining grounds.  In any event, the Board also found that internal relocation was a viable option for the applicant [66]-[69].

10.In these circumstances, the Board rejected the applicant’s claim and dismissed her appeal. 

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 10 June 2022 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said that the Board’s findings are far away from the facts and there was no transparency in the hearing.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.As to the grounds in paragraph 12 above, the first reason is her bare assertion without any evidence in support. Her second reason is provided by the law in order to protect her privacy and safety. There is nothing amiss in this procedure. There is no valid ground to challenge the Board’s Decision.

17.The Court does not find any fault with the Board in reaching the Board’s Decision.

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 23^rd 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