Baroi Putul Rani v. Torture Claims Appeal Board

HCAL 327/2019

[2023] HKCFI 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 327 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 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 46-year-old national of Bangladesh who last arrived in Hong Kong on 24 January 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 January 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 July 2018, she did not depart and instead overstayed, and on 23 July 2018 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 her abusive husband over their domestic disputes.

2.The Applicant was born and raised in Village Dharabasail, Kandi, Gopal, Ganj, Bangladesh. After leaving school she married her husband and raised a family with 2 children in her home village.

3.In about 2011 her husband started to behave abusively towards her, and soon he even moved away to live in Dhaka without any reason or explanation, returning home to visit the children only, during which he would continue to be abusive towards the Applicant and would beat her whenever he lost his temper.

4.In 2015 the Applicant was shocked to hear from a third party that her husband was planning to kill her, and to avoid meeting her husband, she therefore applied to work in Hong Kong as a foreign domestic helper, which she did in March 2016, but when her last employment was terminated in July 2018, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 October 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 23 October 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 assessed the level of risk of harm from her husband upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than hearsay from third party based on speculation, that in any event it was a private domestic dispute between the 2 of 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 158 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 areas of the country away from her home district in large cities such as Sylhet or Rajshahi where it would be difficult if not impossible for her husband to locate her.

7.On 5 November 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 9 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found on the basis of the Applicant’s own case that any risk of harm from her husband if real and without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh to negate such risk 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 by her husband that her claim for non-refoulement protection failed on all applicable grounds.

9.On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds in her Form and supporting affirmation for her intended challenge which can be summarized as follows:

(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 procedurally 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)  That the Applicant was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submissions for her appeal before the Board which was procedurally unfair;

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

(7)  That the Applicant was provided with the hearing bundle only 6 days before her appeal hearing before the Board with the majority of the documents in English that there was insufficient time for her to prepare for the hearing especially due to her limited skills in English and being unrepresented and without the means to obtain proper translations of those documents which is procedurally unfair to the Applicant.

10.These are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 how did the Board unlawfully fetter its discretion or that Adjudicator act in a procedurally unfair manner, or in what way did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were hearsay or outdated, while it is clearly factually incorrect to complain that she was not given any opportunity to provide her submissions in an oral hearing when the fact is that she did attend an oral hearing before the Board during which she was able to give evidence and to make her submissions for her claim and appeal without problem and with the assistance of an interpreter. As such and as none of these assertions were properly elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing of her application without explanation, I do not find any of them reasonably arguable for her intended challenge or any merits in her intended application.

11.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.

12.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her just a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

13.Even if it is true that the hearing bundle indeed came to her just 6 days before the hearing as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her in the process before the Director and when she was represented by lawyer from DLS, while her NCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board or that this ground is reasonably arguable either.

14.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

15.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.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 23^rd day of June 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