Yeasmin Mst Sabina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2124/2024

[2025] HKCFI 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2124 OF 2024

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 October 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested a hearing. She appeared before the Court on 30 December 2024.

The applicant

3.The applicant, aged 35, is a national of Bangladesh. She was arrested by the police on 5 December 2023 for possession of forged identity card and remaining in Hong Kong without the authority of the Director after having landed unlawfully. The applicant made a non-refoulement claim on 13 January 2024. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who was affiliated to Awami League (“AL”), and his family.

4.According to the applicant, she and her late husband took out a loan from the creditor in early 2010 to startup their crop business. As there was no payment of monthly instalments, the creditor started demanding loan repayment after around 2 months. Subsequently, his action escalated whereby he and his sons assaulted the applicant and her family with bare hands. The village council tried to resolve the matter by arranging a meeting between the relevant parties, whereby an agreement was reached that the loan was to be settled within 5 months. Yet, the applicant still could not afford to repay by deadline and the creditor resumed chasing her for repayment.

5.Subsequently, the applicant moved to her maiden home together with her family. In April or May 2015, the applicant and her husband returned to their hometown of their matrimonial residence to attend a funeral, during which her husband was kidnapped by the creditor and his family, while the applicant was also assaulted and locked up when she tried to plea for her husband’s release. Although the applicant was released later on the same day, her husband passed away two days later.

6.The applicant reported the murder of her husband to the police. Shortly thereafter, she was threatened on a few occasions to withdraw her case, failing which she and her children would be killed. Around two weeks later, the kitchen of her house was set on fire. On the following day, the applicant relocated to her maiden home together with her children and then went to Dhaka. When she returned to her maiden home to visit her mother around three months later, she encountered the creditor and his family, who tried to kidnap her, but failed to do so upon intervention from other villagers.

7.Thereafter, the applicant went back to Dhaka, where she received threatening phone calls from the creditor’s son. In late 2016, the applicant came to Hong Kong to work as a foreign domestic helper (“FDH”). Although she went back to Dhaka in between her FDH contract, nothing eventful had happened to her.

8.The applicant claimed that the creditor and his family were still after her. On one occasion, they even slapped her son to force him to disclose her whereabouts. The applicant was of the view that she could not seek protection from the police because the creditor had a relative working in the police force. She also considered internal relocation not viable because the creditor had strong connection and could find her wherever she went.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 April 2024 (“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 the creditor and his family indicated that they had no real intention to seriously harm or kill the applicant [13]; (ii) the applicant’s dispute with the creditor was private in nature and her claim that the creditor could find her outside her locality was far-fetched [14]-[15]; (iii) there was no evidence showing that the applicant was of adverse interest to the Bangladeshi government [16]; (iv) the lax behaviour of the applicant in seeking non-refoulement protection indicated that the threat was not as imminent as she claimed [17]; (v) state protection would be available [19]-[25] and (vi) internal relocation would be viable [26]-[28].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. Although the appeal was filed more than two months after the stipulated deadline, the Board allowed the late filing as the applicant was imprisoned at the material time [7]-[9]. On 20 September 2024, the Board conducted an oral hearing [12].

13.The Board found the applicant’s evidence inconsistent in many crucial aspects [50]-[93], [137]. In any event, the conduct of the creditor showed that he had no real intention to seriously harm or kill the applicant and that the claimed injuries the applicant and her family suffered were all minor in nature that failed to reach the requisite level of severity. Although the death of the applicant’s husband was tragic, investigation as to the cause of death still needed to be carried out and there was no evidence that the Bangladeshi authorities would fail to do so. Furthermore, the fact that the applicant was threatened to withdraw her case from the police also indicated that the creditor had no concrete influence over the police and that there was no state involvement in the matter [138]-[148].

14.Based on such findings and in light of the country of origin information showing the availability of state protection [95]-[97], [149]-[151] and internal relocation [167]-[178], the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk.

15.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 dated 13 November 2024 for leave to apply for judicial review of the Board’s Decision.

17.In the affirmation in support of her application, the applicant did not raise any specific reasons 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. Before me, the applicant said that she only wanted to stay in Hong Kong for some more time.

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

“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 reason to challenge the Board’s Decision and there is no reason for the Court to interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant appeared in person.