Hashem Shifat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 379/2020

[2024] HKCFI 3510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 379 OF 2020

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 19 June 2018 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.The applicant asked for a hearing. However, she was absent at the hearing on 27 November 2024. I shall deal with her application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 36, is a national of Bangladesh. She first arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 19 July 2013. Her employment contract was prematurely terminated on 15 October 2015 and she had overstayed since 30 October 2015. The applicant was subsequently arrested by the police and she was sentenced to imprisonment of 15 months on 31 March 2016. The applicant made a non-refoulement claim on 30 May 2016, 31 May 2016 and 1 June 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband and Awami League (“AL”) members due to domestic dispute and political dispute respectively.

5.According to the applicant, her husband was an active AL member. She first met him in 2011/2012 and they got married 6-7 months later. Shortly after their marriage, the applicant found out that her husband ran a drug business. Whenever she tried to persuade her husband to end his business, he would assault her. The applicant claimed that she suffered visual and hearing impairment as well as losing a tooth as a result of her husband’s domestic violence.

6.Meanwhile, the applicant was a supporter of Jamaat-E-Islami (“JL”). She feared harm from AL because she claimed that they had a standing order to kill people of JP. On one occasion, AL members threw stones and shoes at her as well as other JP members when they were distributing leaflets. On another occasion, AL members threw cocktail bombs at the JP office in the applicant’s locality. The applicant claimed that she suffered injuries and was hospitalised for a few days on both occasions. Although a report about the bomb was made by the JP leader to the police, they refused to take any action against AL.

7.Due to the claimed threats from her husband and AL, the applicant relocated away from her hometown in January 2013. Subsequently, upon advice from her friend, she went to Dhaka to receive FDH training and eventually arrived in Hong Kong on 19 July 2013 to commence her employment.

8.The applicant confirmed with her family in late 2015 that they had not been threatened by her husband or AL members. She did not dare to report the matter to the police because her husband had threatened her not to do so. She also considered internal relocation not viable because her husband and the AL members could utilise their wide network to locate her.

9.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 December 2016 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the conduct of her husband and the AL members indicated that they had no real intention to seriously harm or kill her [16]-[17]; (ii) there was no evidence showing that her husband and the AL members were as powerful as she asserted [18]; (iii) state protection would be available [19]-[25] and (iv) internal relocation would be viable [26].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 11 December 2017, the Board conducted an oral hearing.

13.The Board found the applicant’s claim unconvincing and lacked credibility [47]. Although there might be some element of domestic violence from her husband, the Board considered that it did not amount to such intense physical violence that warranted any non-refoulement protection [48]. The Board also had great doubts that the applicant would attract adverse interest from AL as she was merely a grass-root JP supporter [49]-[50]. The applicant’s credibility was further undermined by the various discrepancies in her evidence and her delay in applying for non-refoulement protection [52]-[64].

14.The Board found the applicant’s claim was based solely on bare assertions/speculation and it was not accepted that she would face any risk of harm upon return to Bangladesh [65]-[69]. In any event, there were avenues to assist the applicant with her domestic violence problem [70]-[72] and that internal relocation would also be available [73]-[76].

15.Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [34]-[42], [77]-[84]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.The applicant has filed Form 86 on 11 March 2020 for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

18.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).

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

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

“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.”

21.The applicant has raised no valid to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

22.The applicant fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decision.

DISPOSITION

23.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant was unrepresented and did not appear.