Parvin Shahana Alias Shahana-parvin Alias Shahana Parvin v. Torture Claims Appeal Board

HCAL 861/2023

[2024] HKCFI 2670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 861 OF 2023

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Bangladesh who last arrived in Hong Kong on 3 October 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 May 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 November 2017, she did not depart and instead overstayed, and on 8 February 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as she supported their rival Bangladesh Nationalist Party (“BNP”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hasan Nagar, Ashrafabad, Dhaka, Bangladesh. After leaving school she married her husband and raised a family with 2 children in her husband’s home in the same district, and followed him to support BNP regularly attended their local meetings and activities.

3.Her husband’s sister was also an active BNP member in their home district who had attracted adverse attention from rival AL supporters, and after one serious attack by them that she fled the country for Dubai, whereupon those AL supporters turned their harassments and intimidations against the Applicant, and in June 2006 they made some false charges to the police against her that she fled with her family to Nawabganj to hide in her brother’s place before moving on to Mirpur to stay with her uncle.   

4.However, after her husband was attacked by those AL supporters on one occasion in 2008, the Applicant decided that it was no longer safe to remain in Bangladesh, and so she made arrangements to work in Hong Kong as a foreign domestic helper, which she eventually did on 7 January 2014 when she departed Bangladesh for Hong Kong to start her employment, but when her last employment was prematurely terminated in November 2017 she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and subsequently in February 2022 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 7 September 2022 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”).

6.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 those local AL supporters 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 other than the usual harassments and intimidations which were common between rival supporters, nor was there any evidence of any adverse interest of the police or authorities in her given that she was able to leave the country without any problem, that in any event in the absence of 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 165 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 anyone to locate her.

7.On 16 September 2022 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 23 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 May 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of being a BNP supporter but found no reliable evidence that she had ever held any official post in the party to warrant any political reason for those local AL people to specifically target her or to have any intention to seriously harm or kill her other than just general harassments and intimidations common between rival supporters, nor was there any evidence of any adverse interest of the police or authorities in her given that she was able to leave the country without any problem, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh that it is not accepted that she will face any real risk of proscribed harm from anyone that it concluded that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 5 June 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, while in her supporting affirmation of the same date she just made bare and uncorroborated assertions that the Adjudicator did not consider her claim properly or to allow her to submit supporting documents without proper translations or that the interpreter was not helpful during her appealing hearing before the Board but without any necessary or relevant details or particulars or elaborations for such assertions, nor did she attend the hearing of her application without any explanation. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.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.

11.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 91 - 119 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.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.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.

14.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 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