Khatun Polly v. Torture Claims Appeal Board

HCAL 2587/2019

[2022] HKCFI 2975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2587 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 (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 34-year-old national of Bangladesh who last arrived in Hong Kong on 12 December 2017 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 August 2019 or within 14 days of its early termination, but after it was prematurely terminated on 18 February 2018, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 5 June 2018. 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 the family of her deceased husband in revenge for his murder by her family. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Village Sathani, Jamirahat, Phultala, Khulna, Bangladesh. After leaving school she came to Hong Kong in 2015 to work as a foreign domestic helper.

3.During her return to Bangladesh in January 2017 after completing her employment in Hong Kong, the Applicant met her future husband who was a Hindu from the neighbouring village, and soon they started their relationship secretly without informing their respective family well knowing their objection due to their different religion.

4.In February 2017 they decided to get married secretly in a mosque in Khulna, but when it was later discovered by her family, her father and other male members of the family tracked them down and attacked them with iron rods and knives that the Applicant fainted at the scene, and when she later regained consciousness in her home, she was told by her father that they had killed her husband.

5.On the following day, her husband’s father and other male members of his family came to the Applicant’s home to take revenge by attacking and killing her parents, but the Applicant managed to escape from the scene unharmed.

6.Fearing further attacks from her husband’s family, the Applicant fled to Phulbaria to take shelter in a friend’s place, but when she later heard that they were looking for her everywhere, she therefore departed Bangladesh on 12 December 2017 for Hong Kong to resume her employment as a foreign domestic helper, but when her employment contract was prematurely terminated on 18 February 2018, she was afraid to return to Bangladesh and so she overstayed in Hong Kong, and after 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 10 December 2018 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 December 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’s family upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her, that in any event her problems with them arose from some private disputes between their 2 families 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 159 million people spread across a vast territory of more than 140,000 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 the country away from her home district in large cities such as Chittagong where it would be difficult if not impossible for anyone to locate her.

9.On 11 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 30 April 2019 and 6 May 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 August 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies discrepancies and contradictions in the Applicant’s evidence given to the Board and those given earlier to the Director that it doubted the credibility of her claim and rejected her claim of having eloped and married a Hindu man against the will of their respective families which led to fatal revenge attacks between them and her subsequent departure of her home country for Hong Kong which were all found to be fabrications of the Applicant, and concluded that she will not face any risk of being harmed or killed by anyone upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

11.On 5 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and 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 requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedural 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 that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  Procedural unfairness in that the Applicant was not given an opportunity to put forward her submissions in an oral hearing nor was she invited to submit written submissions for her appeal or to reply to submissions made by the Director to the Board; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information resulted in groundless speculations that it is safe for her to return to her home country.

12.These are however all just broad and vague assertions of the Applicant containing a few 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 unlawfully fetter its discretion or act in a procedurally unfair manner, or what source of news or COI relied on by the Board were unofficially recognized or were hearsay or outdated, while it is clearly wrong for the Applicant to say that she was not given any oral hearing or any opportunity to make her submissions for her appeal before the Board when the record shows that she in fact had attended 2 oral hearings during which she was able to present her case and to make her submissions as well as answering questions raised of her claim by the Adjudicator with the assistance of an interpreter without any problem. As such I do not find any of these grounds relevant to her case or 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 94 – 125 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during 2 oral hearings, 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 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, 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 23 August 2022 wrote to the Court requesting to withdraw her application as she just wants to return to her home country as soon as possible.

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 of her wish to return to her home country as soon as possible, I accordingly dismiss her leave application.

Dated the 29^th day of September 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