Jahan Nasrin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2683/2018 and HCAL 3392/2019

(Heard together)

[2024] HKCFI 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

No. 2683 of 2018 and 3392 of 2019

(Heard together)

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 absent 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 filed Form 86 dated 27 November 2018 (HCAL 2683 of 2018) for leave for judicial review of the Director’s letter dated 13 November 2018 (“the Director’s letter”), which the Department acknowledged receipt of her letter on the same date for withdrawal of her request for non-refoulement claim.  Obviously, the Director’s letter is not judicially reviewable because the Director had not made any decision in this letter.  This application is therefore dismissed in limine.

2.The applicant, by a hand-written letter bearing a date chop of receipt of 16 November 2018, requested the Director to re-open her claim.

3.By a letter dated 28 November 2018, the Director accepted her application for re-opening her claim.

4.By Notice of Decision dated 15 February 2019 (the Director’s Decision”), the Director refused the applicant’s non-refoulement claim.

5.The applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  By Decision dated 23 October 2019 (“the Board’s Decision”), the Board dismissed her appeal.

6.The applicant filed Form 86 filed on 14 November 2019 (HCAL 3392 of 2019) for leave to apply for judicial review of the Board’s Decision.  What follows is the Court’s consideration of HCAL 3392 of 2019.

7.In order to clarify the above scenarios, the Court, on its own initiate, set the case down for hearing on 3 June 2024.  Due notice of hearing was given to the applicant.  However, the applicant was absent on that day.  I shall deal with her application on paper.

The applicant

8.The applicant, aged 44, is a national of Bangladesh.  She first arrived in Hong Kong on 13 October 2015 to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 15 April 2018 and she overstayed since 30 April 2018.  The applicant surrendered to the Immigration Department on 29 June 2018.  She first made a non-refoulement claim on 31 July 2018, which she subsequently withdrew on 13 November 2018.  On 16 November 2018, the applicant requested the Director to re-open her claim, which request the Director accepted.  The claim was made on the basis that, if refouled, she would be harmed or even killed by members from Awami League (“AL”) and the police, because she witnessed a murder committed by AL members and she reported the matter to police.

9.According to the applicant, her late husband was a Bangladesh Nationalist Party (“BNP”) president in his locality.  The applicant used to attend party meetings and rallies with her late husband.  She continued working for BNP after the death of her husband.  The applicant’s popularity had attracted interest from AL members, who invited her to join them as their leader.  Although she kept declining their offers, they never harassed her because of her late husband’s and her popularity and influence in the area.

10.On 15 February 2015, the applicant witnessed AL members murdering her neighbour, who was a rich and influential person affiliated to BNP.  Subsequently, police officers went to the applicant’s home and took statement from her.  She also went to the police station the next day with her neighbour’s family members to give a formal statement.  Around five days later, 5 - 6 AL members came to the applicant’s home and asked whether she saw them killing her neighbour.  The AL members then offered the applicant a leadership position in AL or money if she kept her mouth shut, otherwise they would take her and her son’s lives in five days.  One of the AL members even demanded the applicant to withdraw her statement from the police and tell the police that she had not witnessed any murder.

11.The applicant intended to report the threats from the AL members to the police the next day.  Yet, the police did not even let her into the police station and simply told her that they were busy.  The applicant then relocated to a relative’s home with her son.  After spending 15-20 days there, she returned and stayed with her mother-in-law.  The applicant later moved to her elder sister’s home after she was warned by some neighbours and distant relatives that she might be in danger because of her attempted reports to the police.

12.On the second night of her stay with her elder sister, she was informed that her home had been set on fire.  Her neighbours told her that 15 - 20 AL members were seen in the vicinity of her home when the fire broke out.  The applicant attended the police station with her elder sister and mother-in-law the next day and was told that the fire was caused by electrical short circuit.  She also went to the home of two senior AL leaders and told their wives about her situation.  Thereafter she returned to her elder sister’s home.

13.About a week later, a group of AL members together with five police officers came to the home of the applicant’s elder sister.  Out of fear, the applicant hid herself in a small jungle nearby.  Yet, she was still found by some AL members, who then blindfolded her and took her away by vehicle.  The applicant was brought into a locked room and threatened her to withdraw the witness statement.  During her detention, she was urinated in her mouth, raped and beaten up.  She lost consciousness after around two days.

14.The applicant found herself at a police post when she regained consciousness. She tried to seek help from the police, but they struck her with their batons instead.  She then passed out again due to extreme pain.  The applicant was later found in a rice paddy field and some passers-by took her to the hospital. She had bite marks on her face and breast.  Her private part was torn and a scarf was found inserted into her vagina.  She was so weak that she could barely move or speak.

15.During the applicant’s hospitalisation, some police officers attended her elder sister’s home and asked for the applicant’s whereabouts.  She later learnt from her elder sister that the police intended to arrest her for making false allegation and her elder sister had to bribe the police to spare the applicant from being arrested.  About three months later, the applicant saw 5 - 6 AL members coming towards the hospital.  She immediately ran away through the utility staircase and escaped to her elder sister’s home.

16.In around May 2015, the applicant started to receive training at a training centre.  She changed her name to avoid being identified.  During her stay at the training centre, there was an occasion when three women went to the agency to look for her.  On 13 October 2015, the applicant left Bangladesh via Thailand for Hong Kong.  

17.The applicant maintained contact with her elder sister over the phone while in Hong Kong.  She learnt that her son was almost abducted in around April or May 2018.  Thereafter, one of the relatives took him to India.  Her elder sister also told her that the police had been to her home once, as they wanted to interview her regarding an outstanding case.  Meanwhile, her nephew was abducted to the AL office and beaten up with sticks when he was trying to obtain supporting documents for the applicant at the BNP office.   

18.The applicant was of the view that she could not seek protection from the police because they favoured the ruling party, AL. She also considered internal relocation not viable because AL had extensive network within Bangladesh, so that she would be found no matter where she hid.

19.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 15 February 2019 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

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

c.  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”); and

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

21.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director considered the applicant’s case not credible regarding her claimed popularity and influence within BNP, as well as the various incidents she encountered.  In any event, the applicant’s delay in seeking protection was also inconsistent with the behaviour of a person who faced real and imminent risk [13] - [14].  The Director further found that the problem faced by the applicant was merely a private and personal grudge that came from her witnessing a murder committed by AL members.  There was no evidence of any involvement from Bangladeshi authorities in the matter and the action taken by the perpetrators also showed that they had no real intention to severely harm or kill the applicant [15] - [21].

22.Furthermore, (i) state protection would be available to the applicant upon her return [22] - [25]; (ii) internal relocation would be viable [26] - [27] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28] - [33], Persecution risk [34] - [39] or Torture risk [40] - [43].

The Board’s Decision

23.The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing.   

24.The Board had no issue on the applicant’s credibility given that she gave a detailed and coherent description of the past events she encountered in Bangladesh [57].  The Board however found that the ill-treatment was inflicted on the applicant to coerce her to withdraw her witness statement from the police and there was no evidence of any state acquiescence.  In any event, the action taken by the AL members and the local police indicated they had no real intention to seriously harm or kill her.  Furthermore, state protection and internal relocation would also be available to the applicant according to the country of origin information.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [58] - [92].

25.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

26.The applicant has filed Form 86 on 14 November 2019 for leave to apply for judicial review of the Board’s Decision.

27.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

28.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).

29.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

30.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.”

31.At paragraph 57 of the Board’s Decision, the Board said:

“The Appellant gave a detailed and coherent description of the circumstances leading to her seeking overseas employment in Hong Kong. Bearing in mind the lower standard of proof on the part of the Appellant, I do not take any issue on her credibility.”

32.From the evidence accepted by the Board, the main reason for the applicant’s enemies to have caused such harms and bodily injuries to her, including raping her and urinating in her mouth was she had given a statement of the murder case to the police officer.  This seems to be a case where BOR 3 risk will be relevant for consideration.

33.The Board considered that state protection will be available if she returns to Bangladesh.  However, this is inconsistent with its own finding that she had reported her case to police and police took no action.  Also, after her torture in the jungle where she was raped, urinated in her mouth and beaten up, she reported to police and she was beaten by police officer with a baton inside the police station.  The Board relied upon the COI to say that police protection will be available to her and she did not seek further protection after those incidents of being beaten by police officers.  However, the Board had made no enquiry on why she did not seek further police protection by going to higher authority.  The COI refers to the general situation in Bangladesh, it will be incumbent on the Board to investigation into the applicant’s personal risk as held in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §29.

34.However, the Board had found that internal relocation will be viable for her if she returns to Bangladesh as the Board said in the Board’s Decision:

“77. The Appellant had managed to stay safe in Narayanganj for half a month and in Tangail for five months before she left Bangladesh. Again, her son also stayed at her relative’s place in Narayanganj for three years from 2015 to 2018 and was unharmed during the period. There is no motive for the local AL members to locate the Appellant if she chooses to settle in other places of the country upon refoulement.

78. The Constitution allows freedom of movement within Bangladesh. …

79. With her national and international exposure, the Appellant would have no problem in securing a safe relocation internally, whether in the City of Dhaka (which is the capital of the country with a population of about 9 million), or in other parts of the country.  She may not expect a very good income and high quality of life, bur safe and reasonable internal relocation is possible.  …”

35.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 held:

32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims.  The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

36.The applicant has raised no valid reason to challenge the Board’s finding in relation to internal relocation.

37.The applicant therefore fails to show that she has any realistic prospect of success in her proposed review of the Board’s Decision.

CONCLUSION

38.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 22^nd day of August 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