Sweety Mahmuda Akter v. Torture Claims Appeal Board

HCAL 642/2019

[2024] HKCFI 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 642 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Bangladesh who arrived in Hong Kong on 28 October 2017 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 October 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 April 2018, she did not depart and instead overstayed, and was arrested by police on 18 July 2018. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her husband’s family as they objected to her marriage to her husband. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Purbo Chonpara, Rupganj, Narayangang, Bangladesh. After leaving school she started dating her boyfriend who was from a wealthy family in her home village but kept their relationship from her boyfriend’s family for fear that they would object due to the different status between their two families.

3.In December 2014 they decided to get married in Konapara without informing her boyfriend’s family, and after their marriage they stayed in Konapara where her husband worked to support their family.

4.In mid-2015 they decided to return to their home village but were met with great disapproval from her husband’s family who were angry with them but reluctantly allowed the Applicant to stay in their house.

5.However, almost every day after her husband had left for work that his parents and siblings would abuse the Applicant by pushing her around, forced her to do all the household chores, and by slapping and kicking her at will.

6.In 2016 her husband started to develop serious health problem and had to stay home to rest by taking medicine provided by his parents, but as his health continued to deteriorate while his parents refused to allow the Applicant to take him to the doctor, insisting instead that he should continue to take their medicine.

7.As the Applicant became suspicious about the medicine provided by his parents, she secretly took a sample to a local laboratory to run some test which revealed that it contained substances harmful to human, and for which the Applicant confronted her husband’s parents, they admitted that they were trying to poison her husband for bringing shame to the family by marrying her, and that they would kill her as well if given the chance to do so.

8.The Applicant was shocked by the actions of her in-laws, but before she could decide what to do next, on the same night while she was sleeping, her father-in-law came into her room with some unknown men who tried to suffocate her with a pillow, but the Applicant put up a violent struggle and managed to flee from the house for her parents’ home.

9.After the last incident the Applicant became fearful for her life, and so she fled to Dhaka to hide in a friend’s place and made arrangements to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 28 October 2017 when she departed Bangladesh for Hong Kong to start her first employment, but after it was prematurely terminated on 19 April 2018, she did not depart and instead overstayed, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 6 November 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”).

11.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’s family 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 of any real intention of them to seriously harm or kill her, that in any event it was a private relationship dispute between 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 Chittagong where it would be difficult if not impossible for her husband’s family to locate her.

12.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 29 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

13.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’s family that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of her husband’s family to seriously harm or kill her, and that in any event it was a private personal dispute between them without 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

14.On 6 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in it and in her supporting affirmation she put forward the following grounds for her intended challenge:

(1)  That the Board was in breach of procedural fairness in unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that it did not satisfy the requirement;

(2)  That the Adjudicator was in breach of procedural fairness in that it acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board was in breach of procedurally fairness in that its decision to refuse the Applicant’s appeal is unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible information had resulted in groundless speculations that it is safe for the Applicant to return to her home country;

(6)  That the Applicant was not given the opportunity to put forward her submissions in her oral hearing before the Board or to respond to the submissions made by the Director in her appeal which was procedural unfair to her; and

(7)  That the Applicant was given the hearing bundle just 6 days before her appeal hearing before the Board with the majority of documents in English thereby given her insufficient time to prepare for her appeal due to her limited skills in English that she was all confused of what was happening at the hearing.

15.Grounds (1) – (6) are however all just bare 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 did the Board unlawfully fetter its discretion or act in a procedurally unfair or irrational manner, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, or how was the Applicant not given any opportunity to put forward her submissions at her oral hearing before the Board As such, and as none of these assertions were properly 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.

16.As for her complaint under the remaining Ground (7) of being provided with the hearing bundle just a few days before her appeal hearing before the Board, the Applicant did not provide any documentary evidence such as the covering letter for her hearing bundle to corroborate her bare assertion, and that even if the hearing bundle was indeed late that she never raised any such issue during the hearing, while most of the documents such as her own NCF and the record of her screening interview had in fact been already provided to her in her earlier process before the Director with legal representation from DLS, while she was assisted by an interpreter during her appeal hearing before the Board when she was able to given evidence and make proper representations to the Board without problem. As such I do not find anything amiss arising from the provision of the hearing bundle to the Applicant, nor do I find this complaint reasonably arguable for her intended challenge either.

17.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.

18.In the Applicant’s case, while the manner in which the Adjudicator assessed the credibility of her claim may be questionable as some of the questions which the Adjudicator had raised issue with in the Board’s decision did not appear to have been put to the Applicant during the hearing to enable her to respond to them, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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.

19.In the premises, and 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.

20.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her leave application.

Dated the 4^th day of June 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