Shilpe Farhana Easmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3183/2019

[2024] HKCFI 27

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3183 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 October 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 1 November 2023.

The applicant

3.The applicant, aged 38, is a national of Bangladeshi. She came to Hong Kong in 2015 to work as a domestic helper. Her employment contract was prematurely terminated on 30 June 2015, but she did not depart. She overstayed since 15 July 2015 and was arrested by police. She lodged her non-refoulement claim by way of a written signification dated 26 July 2015 on the ground that, if refouled, she would be ill-treated or even killed by supporters of the Awami League (“AL”) because she was a member of the Bangladesh National Party (“BNP”).

4.Briefly stated, the applicant and her husband were members of the BNP since 2003. Soon after her joining the BNP, she was assaulted by supporters of the AL whilst she was on her way home from university. They slapped her and push her onto the ground. She was injured and had to receive medical treatment. She reported the matter to police, but no protection was available to her. The police simply did not accept her complaint. She went to Qatar for work in April 2014 until December 2014. Shortly after she returned to Bangladesh in December 2014, around 15 AL supporters came to her home where they assaulted her by pulling her hair and banged her head against the wall. She was raped too. They threatened to kill her if she continued to support the BNP. She had to receive medical treatment at hospital. Her parents reported the matter to police. Again, the police took no action. She had to move to live with her cousin sister in Dhaka, a city of 6.5 hours’ journey from Narail where she lived. She also moved to live in her friend’s house so that people would not be suspicious about her identity. Nothing happened during a few months in Dhaka. Her friend advised her that she should leave Bangladesh as she was no longer safe there. She took her advice and went to the agency where she received some training and came to Hong Kong to work as a domestic helper. She further said that she believed that the police in Bangladesh could not provide her with protection so long as the AL was in power. She said that she only have relatives in Dhaka, but no one in Chittagong. Details of the applicant’s story can be seen from paragraph 6 of the Director’s Decision.

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the low intensity and frequency of past ill-treatment inflicted on her by the AL supporters is indicative of a small future risk of harm upon her return to Bangladesh [14] and there is no evidence to show that the AL supporters intended to kill her [15]; (ii) state protection will be available to her upon her return [19]-[24]; and (iii) internal relocation is viable [25]-[26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 26 September 2019, the Board conducted an oral hearing for her with an interpreter.

8.Having considered the applicant’s evidence [20]-[57], the Board came to the conclusion that:

(1)  it did accept that the police or authorities more generally would fail to or refuse to assist and protect her in the event she sought their help if she returns to Bangladesh [66];

(2)  there are no substantial grounds to believe that she would face a real risk of being subjected to torture and her ground of torture risk is not substantiated [71];

(3)  her evidence about her husband abusing her and he being a AL member himself is inconsistent with her evidence given to the Director and she had no explanation for such inconsistencies [26]-[27];

(4)  the chance of torture by her husband if she returns to Bangladesh is remote [83]-[84];

(5)  relocation is a reasonable option for the applicant [85]; and

(6)  there is no ground to believe that the applicant faces a risk of being arbitrarily deprived of her life and her claim under BOR 2 risk failed [94].

9.For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of application. Insofar as the grounds against the Director, they are not relevant as the Court will only consider the Board’s Decision in this application.

(1)  The Board’s Decision is unfair and unreasonable as it did not take into consideration that the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.

(2)  The adjudicator acted procedurally unfair by placing too much reliance on the Country of Origin Information (“COI”), but had failed to consider her personal background and experience.

(3)  The adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response. The adjudicator also failed to take into account the nexus of political parties and official corruption which exists in her country, making the persecution effectively persecution by the State.

(4)  The Board’s finding was irrational.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understands the Board’s Decision, but there is no safe place for her to live in her country, so she wants to stay in Hong Kong.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.As to the grounds raised by the applicant, they are her personal views or assertions without any evidence in support. The Court of Appeal in in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

16.The applicant has raised no valid ground to challenge the Board’s Decision.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 9^th day of January 2024

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