Case Document

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HCAL 1776/2020

[2024] HKCFI 3381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1776 OF 2020

BETWEEN
	Shafia	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 / 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 29 November 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 39-year-old national of Bangladesh who last arrived in Hong Kong on 14 October 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 October 2017 or with 14 days of its early termination, but when her employment was prematurely terminated on 23 May 2016, she did not depart and instead overstayed, and on 13 February 2017 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”) for reporting to the police of their murder of her husband and/or by a neighbour as her brother failed to repay his debts to the neighbour. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Gazipur, Dhaka, Bangladesh. After leaving school she married her husband and raised a family with a daughter in her home district.

3.One day in 2009 her husband was murdered by a local AL leader and his followers due to their long term dispute, and after the Applicant reported the murder to the local police, Bilal was arrested, but shortly thereafter the Applicant started to receive threats from Bilal’s followers to drop her complaint or else they would kill her and her daughter.

4.Fearing for her safety the Applicant therefore fled with her daughter to Mymenshing District, and in 2010 she placed her daughter in her sister’s care and went to Singapore to work as a domestic servant to support her daughter until 2013 when she started to come to Hong Kong to work as a foreign domestic helper without encountering any further threats from those AL supporters.

5.In 2015 while returning to Bangladesh for her holiday, the Applicant helped her brother to borrow a loan from one of her neighbours before returning to Hong Kong to continue with her employment, and for which she had to assist her brother to repay his loan to her neighbour by monthly instalments from her income earned in Hong Kong.

6.However, when her last employment was prematurely terminated in May 2016 and was unable to remit any money to Indonesia to repay her brother’s loan, and when she was subsequently told by her mother that her neighbour had sent gangsters to look for her with threats to kill her for failing to repay her brother’s loan, the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 September 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 29 October 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 found no substantial grounds for believing that her perceived fears will be real and foreseeable upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from those local AL supporters in the absence of any evidence of any pursuit by them of her since her move away from her home district in 2009 and that it is not accepted that they would still have any adverse interest in her after all these years, nor is there any evidence of any real intention of her neighbour to seriously harm or kill her other than to press her to repay her brother’s debts, that in any event in the absence of any official involvement in either case 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 Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate her.

9.On 8 November 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 17 May 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 November 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from those local AL supporters or her neighbour/brother’s creditor as vastly different and contradictory between those given by her earlier via her lawyer to the Director and those given to the Board at her appeal hearing that it was unable to attach any credence at all to her claim, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until years later, while on her own admission to the Board at the hearing that her brother has since settled his debts and paid off her neighbour that there is no longer any risk of harm from her neighbour, the Board concluded that the Applicant has failed to establish that she will face any risk of any sort from anyone upon her refoulement to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

11.On 4 September 2020 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 or her supporting affirmation of the same date, nor did she request any oral hearing for her application.

12.By then the Applicant was also 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 29 February 2020, the Applicant was therefore more than 5 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.

14.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 29 November 2019 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality 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 merits in her intended application either.

16.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.

17.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 3 – 20 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.

18.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.

19.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.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 or valid reason for her such serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 3^rd day of December 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 December 2024 Shafia 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 December 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14293/18/11/136/B1664 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4110/18 (Formerly RBCZ/11425/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)