Sarker Rita Rani v. Torture Claims Appeal Board

HCAL 2351/2019

[2023] HKCFI 2057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2351 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 38-year-old national of Bangladesh who arrived in Hong Kong on 7 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 14 July 2014, she did not depart and instead overstayed, and on 28 October 2014 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 Bangladesh Nationalist Party (“BNP”) as she supported their rival Awami League (“AL”) during the time when she was a local farmer in her home village before leaving Bangladesh in 2014 to come to Hong Kong to work as a foreign domestic helper.

2.By a Notice of Decision dated 20 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong bill of Rights Ordinance, Cap 383 (“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”).

3.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 those local BNP supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to target her for harm or to have any adverse interest in her given that she was just an ordinary AL supporter without holding 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 166 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 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.

4.The Applicant’s appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision was also rejected and dismissed by the Board on 5 June 2017 upon hearing her in evidence and answer to questions raised of her claim by the Adjudicator for the Board which also confirmed the Director’s decision.

5.On 13 June 2017 the Applicant filed her Form 86 under HCAL 291/2017 for leave to apply for judicial review of the Board’s decision, and in her Form and supporting affirmation she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(2)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(3)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;

(8)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned lawyer for the Applicant resulting in unfair procedure.

6.On 18 August 2017 her application was refused by Deputy High Court Judge Woodcock upon finding no substance in any of her proposed grounds that none of them were reasonably arguable for her intended challenge, and that upon rigorous examination and anxious scrutiny that the Board’s decision was found to be without fault, nor was there any error of law by the Adjudicator or any procedural unfairness or failure to apply high standards of fairness in its decision, and that there was no realistic prospect of success in the Applicant’s intended application. The Applicant never brought any appeal against that decision.

7.Meanwhile on 15 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any such relevant addition facts from the Applicant, the Director by a Notice of Further Decision dated 6 June 2017 also rejected her BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Bangladesh.

8.The Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which she attended another oral hearing on 9 July 2019 before the Board during which she gave further evidence and answered questions raised of her BOR 2 Claim by the same Adjudicator for the Board.

9.By a decision dated 1 August 2019 the Board again dismissed her appeal upon finding that the Applicant had failed to provide any additional facts for her BOR 2 Claim, and that it also confirmed the Director’s Further Decision.

10.On 14 August 2019 the Applicant filed another Form 86 under these proceedings before this Court for leave to apply for judicial review of this second decision of the Board, and again put forward the identical 8 grounds as in her previous leave application under HCAL 291/2017 against the Board’s first decision and which had all been rejected by Deputy High Court Judge Woodcock as not reasonably arguable 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, as correctly found by the Board in rejecting her BOR 2 Claim in the absence of any additional facts in support, and that even on the factual basis of her own case that the Applicant’s claim clearly did not engage the limited scope of the BOR 2 ground. As such 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.

13.The fact is that it has also been established by both the Director and the Board in their previous decisions 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.

14.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 BOR 2 Claim.

15.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw her application as her problem in her home country has been solved.

16.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 returning to her home country, I accordingly dismiss her leave application.

Dated the 9^th day of August 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