Khatun Mst Anjuara v. Torture Claims Appeal Board

HCAL 392/2019

[2022] HKCFI 3177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 392 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:

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 28 August 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 August 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 August 2016, she did not depart and instead overstayed, and was arrested by police on 9 November 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 a local leader of the student wing of the political party Awami League (“AL”) due to certain disputes over their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Arjunpur, Biprohalsha, Natore Sadar, Natore, Bangladesh. Whilst in college she followed her father’s tradition to support the political party Bangladesh Nationalist Party (“BNP”) by joining their student wing Jatiyatabadi Chatra Dal (“JCD”) in which she was elected in 2009 as the chairperson for the female students.

3.One day in March 2009 while she was travelling on a bus, a man named Zabed who claimed to be the local leader of AL’s student wing Chhatra League (“CL”) invited her to join CL as he liked her a lot, but the Applicant refused because she supported BNP, and ignored Zabed for the rest of the bus journey.

4.Soon thereafter Zabed sent people to ask the Applicant to reconsider his invitation and to go out with him as he would like to marry her, but the Applicant always rejected his proposals and ignored his people.

5.One day in April 2010 while she was on her way home from college, the Applicant was abducted by Zabed and his men and was taken by a van to a deserted place where she was raped by Zabed, and was released only several days later when she was dropped off by the van near her home village.

6.Upon returning home the Applicant told her parents of her ordeal, but they decided that she should not disclose it to anyone or go to the police for fear that it would bring shame to her and the family.

7.About 2 months later the Applicant discovered that she was pregnant, and her parents took her to the police to file a complaint against Zabed for raping her, but was told by the police that it was too late for them to make any investigation as the complaint should have been made right after the rape incident.

8.After they were unable to get any help from the authorities, her parents suggested that the Applicant should get an abortion, but when she refused, they then brought her to a women’s welfare organization which then arranged a reconciliation meeting with Zabed in the presence of the village elders to resolve their dispute, during which Zabed agreed to take responsibility for the Applicant and to take her into his family for the birth of her child and to marry her in due course, to which the Applicant and her parents agreed.

9.However, after moving into Zabed’s home, the Applicant was disappointed to realize that he already had a wife, and that he appeared to be concerned only about the child in her womb, and was indifferent and sometimes even abusive towards her that after 2 months the Applicant left Zabed to return to her parents’ home where she later gave birth to their son.

10.About one week thereafter Zabed came to invite her to return to his home with their son with all sorts of promises, to which the Applicant eventually agreed and returned with him to his home. However, soon the Applicant found Zabed to care only about their son and neglected her altogether, and despite her repeated request Zabed still refused to marry her, and during one of their quarrels he attacked her with a knife and injured her right wrist, and threatened to kill her if she dared to raise the matter again.

11.Thereafter the Applicant became fearful for her life, and left with her son to return to her parents’ home. However, on the same night her parents’ house was burned down, and while the Applicant managed to escape with her son and parents, her uncle and aunt perished in the fire which the Applicant suspected was caused by Zabed’s men in an attempt to kill her.

12.When the police refused to launch any investigation and instead treated it as an accident, the Applicant and her parents moved to stay in her grandparents’ place in Rangpur, and in 2012 she travelled to Dhaka to look for jobs, leaving her son in her parents’ care in Rangpur, and in 2014 she came to Hong Kong to start working as a foreign domestic helper.

13.In 2015 her parents returned to their home village in Natore with her son, but later she was informed by her mother that Zabed had come to take her son away, and while her parents subsequently took the matter to the court, Zabed was eventually award the custody of her son as he was the father, and thereafter the Applicant received a phone call from Zabed threatening to kill her if she dared to return to Bangladesh to fight him over their son, and so when her last employment contract was prematurely terminated on 24 August 2016, the Applicant was afraid to return to Bangladesh and instead 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 12 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

14.By a Notice of Decision dated 21 February 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”).

15.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 she would be in danger of being harmed or killed by Zabed upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from him, that there is no reason for Zabed to still have any adverse interest in her after obtaining the custody of their son, that in any event it was a private personal dispute between them 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 157 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 Dhaka where she had stayed before without incidents and where it would be difficult if not impossible for Zabed to locate her.

16.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 29 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

17.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence in particularly as to her very superficial knowledge of BNP, her implausible account of how she came to be appointed the chairperson of JCD in her university, and the inexplicable lack of documentary evidence as to other core aspects of her claim such as the birth of her son or the death of her uncle and aunt without logical explanation given that she was legally represented during her screening process before the Director with sufficient time to obtain such evidence in support of her claim that it did not consider her to be a credible witness or that she had provided a truth account of the events that led to her departure of Bangladesh, and concluded that she does not face a real chance of harm now or in the reasonable foreseeable future from Zabed or anyone else upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

18.On 12 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached copies of the decision and other documents from her hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such 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 for her intended challenge of the Board’s decision.

19.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.

20.In the Applicant’s case, the Board rejected her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 122 of its decision with the benefit of hearing her in her oral evidence and her answers raised of her claim during her appeal hearing, 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, and given the detailed and correct findings by the Board against the credibility of her claim, I do not find any reasonably arguable basis to challenge those findings of the Board.

21.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 eth Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins and Anor [2013] 1 HKC 526.

22.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.

23.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 14^th day of October 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