Akter Nargis v. Torture Claims Appeal Board

HCAL 429/2022

[2023] HKCFI 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 429 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 / 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 35-year-old national of Bangladesh who last arrived in Hong Kong on 25 May 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 May 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 July 2018, she did not depart and instead overstayed, and more than one year later on 30 October 2019 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 the family of her deceased husband over some land dispute in her home village. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Joypurhat, Bangladesh. After leaving school she was arranged by her family to marry her much older husband who was a farmer and owned lands and properties jointly with his several brothers in the village which they inherited from their father.

3.After the marriage the Applicant moved to live with her husband in his home and subsequently gave birth to their daughter, but 3 years later her husband met an accident and became paralyzed, and eventually passed away in mid-2007.

4.Soon the brothers of her deceased husband demanded the Applicant and her daughter to leave the property, and when she refused as she and her daughter had nowhere to go, they started to threaten and harass her that eventually she and her daughter had no choice but to return to her mother’s home.

5.In order to make her living and to support her daughter, the Applicant worked in a garment factory, and in 2014 she started to come to Hong Kong to work as a foreign domestic helper, but after her last employment was terminated 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 21 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

6.By a Notice of Decision dated 17 March 2020 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of her being harmed or killed by her husband’s family upon her return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill her other than to drive her away from her deceased husband’s properties which they had succeeded, that in any event her problem with her deceased husband’s family was some private land dispute 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 162 million people spread across a vast territory of more than 130,000 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 Dhaka where it would be difficult if not impossible for anyone to locate her.

8.On 27 March 2020 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 25 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 May 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board despite some inconsistencies and discrepancies in her evidence accepted the Applicant’s claim of threats from her deceased husband’s family which arose from their land dispute but found no evidence of any real intention of her husband’s family to seriously harm or kill her, that after all the years since she first left the country that it is not accepted that there would still be any adverse interest in her in particularly after they have already got what they wanted by taking over her deceased husband’s properties, and that in any event it was a private land dispute between them without 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 areas of the country if she so wishes without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.       

10.On 6 June 2022 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, 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.

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.In the Applicant’s case, 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 her claim if real 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.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 has recently filed an affirmation requesting to withdraw her application as her problem has been resolved that she now wants to return 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 28^th 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