Case Document

100%Judiciary

HCAL 2476/2020

[2024] HKCFI 2667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2476 OF 2020

BETWEEN
	Lipi Najnin Sultana	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Bangladesh who arrived in Hong Kong on 4 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 November 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 January 2015 she did not depart and instead overstayed, and 6 months later on 11 June 2015 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 her former husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Mirdi, Kishoreganj District, Bangladesh. After leaving school she married her first husband Rubel who supported the political party Awami League (“AL”) but was a bad character and whom she subsequently divorced in 2010, and of which Rubel very much resented.

3.In 2011 the Applicant married her present husband Jahirul and raised a family with a daughter in her home village, but as Jahirul supported AL’s rival political party Jamaat-e-Islami (“JeI”), he and his fellow supporters often came into conflicts with the local AI supporters including the Applicant’s former husband Rubel.

4.One day in mid-2012, a fight broke out between the local AL and JeI supporters members within the village, and thereafter Rubel made false accusations to the police against Jahirul who was as a result arrested and detained by the police for investigation.

5.Rubel then in the absence of Jahirul came to the Applicant’s home to threaten and beat her, and warned that he was going to kill her for divorcing her. Fearing for her safety, the Applicant therefore fled with her children to Dhaka to take shelter in a relative’s home.

6.In order to support her children in the absence of her husband Jahirul, the Applicant came to Hong Kong on 3 November 2014 to work as a foreign domestic helper, but when her employment was prematurely terminated on 8 January 2015, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and subsequently on 11 June 2015 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 27 November 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 28 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 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”).

8.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 former husband Rubel upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her, that in any event it was a private dispute between her and Rubel 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 157 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 where she had stayed before without incidents and where it would be difficult if not impossible for her former husband Rubel to locate her.

9.On 9 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 31 July 2019 and 18 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 November 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from her former husband Rubel that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of Rubel to seriously harm or kill her or any attempt by him to do so for some 2 years since her move from her home district to Dhaka, and that in any event it was a private dispute between her and her former husband only without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

11.On 21 December 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 was in breach of procedural fairness by unlawfully fettering its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

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

(4)  That the Board failed 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 with the lack of credible source of information that resulted in groundless speculation that it would be safe for the Applicant to return to her home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s claim;

(7)  That it was unfair for the Board to assess the Applicant’s BOR 2 claim without any screening interview; and

(8)  That the hearing bundle was provided to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English thereby given her insufficient time and opportunity to prepare for the appeal given her limited skills in English that she was confused as to what happened at the hearing which was procedurally unfair to the Applicant.

12.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were just hearsays or outdated, while her complaint of not being screened for her BOR 2 claim is clearly factually incorrect as her claim under all the applicable grounds including BOR 2 was properly screened in 2 oral hearings during which she was able to make proper representations before the Board with the assistance of an interpreter. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

13.As for her complaint of being provided the hearing bundle shortly before her appeal hearing before the Board with the majority of the documents in English thereby giving her insufficient time to prepare for her appeal before the Board, the Applicant did not produce any documentary evidence such as the covering letter or envelope that contained the hearing bundle to corroborate her assertion, but even if the hearing bundle was indeed late, most of the documents had in fact earlier already been provided to the Applicant while she was still legally represented by DLS, while her NCF was also completed on her own instructions by her lawyer, and that she never raised any issue over the hearing bundle during her appeal hearing before the Board when she was able to make her representations for her claim assisted by an interpreter without any difficulty. In the circumstances I do not find anything amiss arising from the hearing bundle or any merits in this complaint of the Applicant either.

14.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.

15.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision 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, 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.

16.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.

17.Moreover, the Applicant recently on 29 July 2024 in writing requested to withdraw her application as it is now safe for her to return to her home country.

18.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 view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of October 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3 October 2024 Lipi Najnin Sultana Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 15223/19/1/96/B1887 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 5054/18 (formerly RBCZ 10170/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)