Akter Rahima v. Torture Claims Appeal Board

HCAL 3624/2019

[2023] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3624 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 33-year-old national of Bangladesh who last arrived in Hong Kong on 16 November 2017 with permission to work as a foreign domestic helper until the expiration of her contract on 16 November 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 December 2017, she did not depart and instead overstayed, and was arrested by police some 5 months later 22 May 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 certain local supporters of the political party Awami League (“AL”) as she supported their rival Bangladesh Nationalist Party (“BNP”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Chanbara Punor Basen Kandra, Rupganj, Narayanganj, Bangladesh. After leaving school she worked in the factory, continued to reside with her parents in her home village, and followed her father’s footstep to support BNP regularly attended their local meetings and activities without holding any official post in the party.

3.During the election of the village chairman in 2015, and while attending the rallies for the BNP candidate, her father was confronted by the local AL leader and his followers who made death threats against him.

4.One night the AL leader came to the Applicant’s home with his men armed with wooden sticks and other weapons and attacked her father, and when she tried to stop their assault, some of the men grabbed and raped her that she eventually lost consciousness, and was subsequently taken to the hospital.

5.After her discharge from hospital the Applicant was informed by her uncle that her father had died in the attack and that her home had also been burnt down, and that for her safety she was advised to leave the country to work as a foreign domestic helper in Hong Kong, which she subsequently did on 19 July 2017, but after her employment was prematurely terminated on 11 September 2017, she then returned to Bangladesh to make an application for a new employment.

6.On 16 November 2017 she returned to Hong Kong for her new employment, but when it was again prematurely terminated on 16 December 2017, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong, and upon her arrest by police some 5 months later, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 November 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 9 January 2019 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by those local AL supporters upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that her claimed problem with them in fact arose from their dispute with her father that there was no evidence or reason for them to have any further adverse interest in her after they had allegedly killed her father with no further reason for them to go after her, 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 159 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 Dhaka where it would be difficult if not impossible for anyone to locate her.

9.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 23 August 2019 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 22 November 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found numerous inconsistencies discrepancies and conflicts in the Applicant’s evidence that it doubted her claim of fear of harm from those local AL supporters over their dispute with her father that caused her to overstay in Hong Kong, that her credibility was further undermined by her failure to raise her claim until some 5 months after her arrest by the police for overstaying in Hong Kong, and that in any event 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 areas of the country without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.On 5 December 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 a copy of the decision together with the hearing bundle of documents for her appeal before the Board but without putting forward any proper ground for her intended challenge of the decision, 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.

12.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.

13.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 77 – 98 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 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.

14.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 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.

15.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.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw her application as her problem has been solved that she now wants to return to her home country.

17.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 more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 30^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