Sultana Mst Buety v. Torture Claims Appeal Board

HCAL 3313/2019

[2023] HKCFI 1102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3313 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 / 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 arrived in Hong Kong on 6 September 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 6 September 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 October 2014, she did not depart and instead overstayed, and more than 6 months later on 17 June 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as supported their rival Jamaat-e-Islami (“JI”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Ramdiya Bashpur, Krokai, Modhukhali, Faridpur District, Bangladesh. After leaving school she continued to reside with her parents in her home village, and followed her family’s tradition to support JI by regularly attending their local meetings and rallies.

3.In 2013 after AL came into power, some of their local supporters started to harass and threaten the Applicant to stop supporting JI and to join AL, and to avoid their harassments and intimidations, the Applicant later fled from her home village to take shelter in her cousin’s place in Faridpur.

4.However, when the threatening phone calls from those AL supporters persisted, the Applicant decided to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she subsequently did on 5 September 2014 when she departed Bangladesh for Hong Kong to start her employment, but when her employment was prematurely terminated on 27 October 2014 she was afraid to return to Bangladesh, and so she overstayed in Hong Kong and later raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 July 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”).

6.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 her claimed future risk of harm by those local AL supporters upon her return to Bangladesh is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to have targeted her for harm given that she was just an ordinary JI supporter without any official post in the party, that in any event 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 the country away from her home district in large cities such as Dhaka where it would be difficult if not impossible for anyone to locate her.

7.On 7 August 2018 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 23 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 October 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from the AL supporters for leaving her home country and for overstaying in Hong Kong, and that in any event that even if her claimed risk were true that in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 6 November 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 the 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.

10.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.

11.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 10 – 13 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in his 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.

12.The fact is that it has also been established by both the Director and the Board in their respective 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.

13.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.

14.Furthermore, the Applicant recently field an affirmation requesting to withdraw her application as she no longer has any problem returning to her home country.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of May 2023

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