Roy Maya Rani v. Torture Claims Appeal Board

HCAL 903/2020

[2024] HKCFI 2669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 903 OF 2020

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 October 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Bangladesh who arrived in Hong Kong on 20 May 2017 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 May 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 28 May 2018, she did not depart and instead overstayed, and was arrested by police on 19 June 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 abusive husband over their marital disputes and/or the local supporters of the political party Awami League (“AL”) and/or the police for suspicion of being involved in the murder of 2 AL supporters. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Parmashari Pur, Karol, Mutoni, Dinajpur, Bangladesh where she followed her family’s tradition to support the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and activities.

3.After leaving school she married her husband and raised a family with 2 children in his home district in Poyash, Sundarpur, Karol, but their relationship did not fare well during the marriage due to their political differences as her husband supported rival AL, and that he also indulged in drinking and when drunk would hit her at will which she would try to tolerate for the sake of their children.

4.However, things became worse in 2008 when her husband brought a woman home claiming to be his second wife, and together they would often abuse the Applicant, and even threatened to kill her if she did not leave the marriage.

5.Eventually by 2014 the Applicant found herself unable to tolerate their abuses any more, and left her husband’s home to stay in a friend’s place at Ishanpur in Dinajpur District.

6.Several months later one day while she was attending a BNP meeting in nearby Uchitpur, the Applicant heard that the police were investigating the recent murder of 2 AL supporters in the neighbourhood, and when she was later informed by her friend that the police had come looking for her for investigation of the murder which they suspected were committed by the BNP people, the Applicant suspected that her husband might have made false charges against her to the police that she was involved in that murder, and that the AL people might also come after her for revenge for the murder of 2 of their people.     

7.The Applicant therefore decided that it was no longer safe for her to remain in Bangladesh, and so she made arrangements to leave the country by applying to come to Hong Kong to work as a foreign domestic helper, which she eventually did on 20 May 2017 when she arrived in Hong Kong to start her employment contract, but when it was prematurely terminated 28 May 2018, she was afraid to return to Bangladesh and so she overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 7 December 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 his 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”).

9.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 the AL people or the police upon her return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her husband to seriously harm or kill her over their marital disputes now that she had left their marriage in 2014 and had since had no further contact with him, nor is there any reliable evidence of any adverse interests that the AL people or the police might have in her other than hearsays or her own suspicion or speculations and the fact that she was able to leave the country without any problem, that in any event her dispute with her husband was a private marital matter between the 2 of them only 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 159 million people spread across a vast territory of more than 130,000 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 or Chittagong where it would be difficult if not impossible for anyone to locate her.

10.On 20 December 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 5 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 11 October 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.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 or the AL people or the police that caused her to overstay in Hong Kong to seek protection, that even if her claimed risk of harm from her husband were true that there was no reliable evidence of any real intention of him to harm or kill her since she left him in 2014 and since without any further contact between the 2 of them, nor is there any reliable evidence of any adverse interest of the AL people or the police in her and the fact that she was able to leave the country without any problem, and that in any event her claimed risk of harm from her husband even if real arose from their private domestic disputes 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.    

12.On 14 May 2020 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 life must be protected by the criminal law from the 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;

(3) 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

(4) 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

(5) 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.     

13.By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for her to file her Form 86 fell on 11 January 2020, the Applicant was therefore more than 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation other than that she was then being detained at Castle Peak Bay Immigration Centre (“CIC”) but without any further details or particulars as to when she was first being detained, while the record shows that the Board’s decision was sent on 11 October 2019 to her then reported residential address without being returned through undelivered post, and even if she was indeed being detained during the relevant period that with the availability of the assistance from the welfare officers stationed there that I am unable to see any good or valid justification for her such serious delay.      

16.As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just bare and vague assertions 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 what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of her case as found by both the Director and the Board the that it was a private domestic dispute between her and her husband only without any official involvement or political element at all. 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, nor do I find any merits in her intended application.

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, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 45 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim from her husband or the AL people even they were real are localized ones 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.                

20.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.

21.Moreover, the Applicant recently on 29 August 2024 filed an affirmation requesting to withdraw her application but without providing any further details or particulars as to what happens to her claimed risks in her home country.

22.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 the absence of any good reason or justification for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 3^rd day of October 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