Parvin Most Nargish v. Torture Claims Appeal Board

HCAL 2378/2019

[2023] HKCFI 3246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2378 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 18 March 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 March 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 October 2015, she did not depart and instead overstayed, and some 3 ½ months later on 16 February 2016 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.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Lalitahar, Korkori Hat, District Rajshahi, Bangladesh.  After leaving school she married her husband, and raised a family with 2 children in her husband’s house in Village Bhabanipur in the same district.

3.Soon after the marriage the Applicant discovered that her husband was an alcoholic who would be hostile and abusive towards her whenever he was drunk, and as he was frequently unable to keep his job, in order to support the family the Applicant sought financial assistance from her parents to start a poultry business, but instead of helping out with the business, her husband just demanded money from the Applicant for his use and to buy more alcohol.

4.In 2001 the Applicant was unable to maintain the business and eventually closed it down, and as she was unable to give him any more money for his spending, her husband would become even more abusive and violent towards her by slapping and hitting her at will.

5.By 2006 the Applicant was no longer able to tolerate her husband’s abuses, and therefore left him and moved with the children back to her parents’ home, but whereupon her husband would frequently demand that the Applicant returned with the children, and when she refused, he then made all sorts of threats against her, and on one occasion in 2013 he confronted her in the market and threatened to throw acid at her face but was restrained by the passers-by that the Applicant managed to escape unharmed.       

6.After the last incident the Applicant however became fearful for her safety, and to avoid any further threats from her husband, she decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did on 18 March 2014 when she arrived in Hong Kong to start her employment, but after it was prematurely terminated on 16 October 2015, 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 22 January 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 26 February 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”).

8.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 him to seriously harm or kill the Applicant, 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 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 areas of the country away from her home district in large cities such as Dhaka where it would be difficult if not impossible for her husband to locate her.

9.On 6 March 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 24 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 14 August 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, which was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until some 3 ½ months later, and that in any event there was no reliable evidence of any real intention of her husband to seriously harm or kill her when he could have done so during those 6 years between their separation and her departure of the country that it concluded that the Applicant had failed to establish any real risk of harm from her husband or anyone upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.    

11.On 16 August 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her right to life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim without realizing that she was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the board which in itself is enough to render its decision void;

(5) That the board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State; and

(8) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.     

12.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any 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 in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to indicate that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even her own case that it was a private domestic dispute between her and her husband only without any official involvement or political element.  As such, and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.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.

14.In the Applicant’s case, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, 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.Moreover, the Applicant recently on 14 November 2023 wrote to “cancel” her case as it is now safe for her to return to her home country, and which she wants to do so as soon as possible.

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 that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 14^th day of December 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