Akter Asma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1538/2020

[2024] HKCFI 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1538 of 2020

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 10 July 2020 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 31 January 2024.

The applicant

3.The applicant, aged 34, is a national of Bangladesh. She entered Hong Kong on 29 October 2016 to work as a foreign domestic helper. Her employment contract was pre-maturely terminated on 7 May 2017 and she overstayed since 22 May 2017.  On 4 July 2017, she surrendered to the Immigration Department. The applicant made a non-refoulement claim on 11 September 2017. The claim was made on the basis that, if refouled, she would be ill-treated or even killed by her ex-husband and his fellow members of the Awami League (“AL”).

4.According to the applicant, she married her husband in March 2006. She became a member of the Bangladesh Nationalist Party (“BNP”) since March 2008. Her husband was also a BNP member, but he switched to become an AL member in January 2008. Since then, frequent arguments arose between the couples and the applicant would be beaten up by her husband for attending BNP monthly meetings. On an occasion in 2012, the applicant was hospitalised after her husband beat her with a stick and banged her head against the wall many times. She reported the assault to the police, but neither they nor the other BNP members were able to locate her husband because he had the support from AL members. After the assault in 2012, the applicant moved to live with her parents, her son and mother-in-law. She divorced her husband on 18 April 2013.

5.The applicant continued to attend BNP monthly meetings after the divorce. She claimed that AL members, including her husband, would come to disrupt the meetings and beat her up. The applicant did report the matter to the police, but they were reluctant to take any action given her ex-husband’s affiliation with AL. Towards the end of 2014, her ex-husband caused chaos at her parents’ home by destroying everything there. She reported the incident to the police, who again refused to assist. Her ex-husband also burnt down the pickup van of her younger brother and framed up his elder brother, which led to the detention of the latter for 15 days. The applicant realised that she might have brought trouble to her family by living with them, so she rented a house elsewhere and moved there. In the meantime, she worked part-time in a tissue company and received training to be a domestic helper. Eventually, she left Bangladesh for Hong Kong on 28 October 2016.  

6.The applicant maintained contact with her brother and son after she arrived in Hong Kong. She was informed by her brother that her ex-husband was still looking for her and threatened to kill her if she returned to Bangladesh.

7.The applicant was of the view that she could not seek help from the police given their inaction after she reported the cases to them in the past. She also considered internal relocation not viable because of the widespread AL members in Bangladesh. She believed that she could easily be located.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 November 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that as the applicant’s past involvement in BNP was only at the grass-root level, she would not attract adverse interest from the whole AL party in pursuing her, so that the risk of harm upon her return to Bangladesh is low [12]-[15]; (ii) state protection will be available to her upon her return [16]-[19]; (iii) internal relocation is viable [20]-[21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 12 June 2020, the Board conducted an oral hearing. The applicant did not adduce further evidence or provide further clarification during the oral hearing.  

12.Having considered the applicant’s evidence, the Board found it illogical that her ex-husband only targeted the applicant, but not her family members who were also BNP-affiliated [26]. The Board also noted that the applicant failed to seek non-refoulement protection at the earliest opportunity, indicating that her risk of fear was not real and genuine [28]. In any event, the applicant was only a grass-root BNP member, so that it is unlikely that she would attract prolonged interest from the AL members [50].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [44]-[54], BOR 2 and BOR 3 risk [63]-[68] or Torture risk [69]-[73]. Furthermore, state protection [36]-[42] and internal relocation [55]-[62] were also available. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.The applicant has filed Form 86 dated 22 July 2020 for leave to apply for judicial review of the Board’s Decision.

15.The applicant has attached her grounds to Form 86, which are summarized below.

(1)   The Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements.

(2)   The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)   The Board’s decisions to refer the applicant’s appeal were reasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(4)   The Board failed to meet the great care and duty owed to a self-represented claimant.

(5)   She was not given a fair opportunity of make written submissions.

(6)   The Board relied upon the source which is not official recognized or it is simply hearsay or cases which are outdated, resulting in the Board’s speculation that it is safe for her to return to his country.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

17.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 and she may be wrong herself. But she does not want to return to Bangladesh. She wants to stay here.

18.For the reasons given in paragraphs 12 and 13, the Board concluded that she failed to show that she will be subjected to any real risk of harm as she alleged if she returns to Bangladesh.

19.The reasons (1) to (4) and (6) given in paragraph 15 supra are her general opinions without any evidence in support; (4) is irrelevant as the Board has no duty to advise her to make written submissions. She was at liberty to make submissions before the Board as she said that she was free to speak before the Board.

20.There is no valid reason to challenge the Board’s Decision. As such, the applicant fails to show that she would have a realistic prospect of success in her intended judicial review of the Board’s Decision.

CONCLUSION

21.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 12^th day of April 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