Begum Jusna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1472/2020 on BabelCite. This High Court CFI judgment was delivered on 18 February 2025.
1. This is the Applicant’s application by Form 86 filed on 14 July 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 March 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 August 2018 (the “Notice”), refusing her non-refoulement application.
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HCAL 1472/2020 [2025] HKCFI 677 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1472 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 14 July 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 March 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 August 2018 (the “Notice”), refusing her non-refoulement application. 2.The leave application was filed three months and nineteen days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made nineteen days out of time. Extension of time to file the leave application is required. 3.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. 4.The Applicant did not give any reasons for the delay in her Form 86 or supporting affirmation. At the hearing, she insisted that she was not informed of the outcome of her appeal until 30 September 2024. This is an absolute impossibility as she had made the leave application in July 2020, four years earlier. She is unable to explain the delay. However, as the delay is not substantial, instead of incurring time to explore the reasons for the delay with her, the Court considered it more expedient to proceed straight to assess merits of the leave application, which is usually the crucial and determining factor in an application for extension of time to apply. Background 5.The Applicant is a Bangladeshi national. She last entered Hong Kong on 28 May 2014 to work as a domestic helper. Her employment was prematurely terminated and she overstayed since 30 December 2015. On 10 October 2017, she was arrested for a number of immigration offences and for using a forged Hong Kong identity card. She was convicted and sentenced to fifteen months’ imprisonment. About two months before she completed serving her sentence, she lodged a non-refoulement claim on 3 June 2018. 6.In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. The Applicant’s case 7.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to Bangladesh, she will be harmed or killed by her parents’ neighbour (the “neighbour”) for being unable to repay money borrowed from him. 8.The Applicant is now aged 36. She has five siblings all living in Bangladesh. She had three years’ formal education and two years’ working experience as a domestic helper in Hong Kong. She was married in 2007. Her husband was unemployed and illiterate. After her marriage, she moved to live with her husband in another village. 9.In 2008, her mother passed away. Her father remarried a year after. Her stepmother did not treat her and her siblings well. In 2009, her father went missing. She suspected her father, who was a leader of the Bangladesh Nationalist Party (“BNP”) at village level, had gone to Dhaka for political work. Being the eldest child, she took over the responsibility of taking care of her siblings. She left her husband and moved with her siblings and her daughter to live with her aunt’s house in Kaskhura from the end of 2010 to 2011. Her husband remained in his village as he did not want to see her siblings. 10.During that period of time, the Applicant borrowed various sums of money totalling one million Bangladesh Taka from a neighbour for their living expenses. The loan agreement was made orally without any provision for interest or for repayment other than her promise to repay once her father returned home. She knew little about the neighbour other than that he was a senior leader of the Awami League (“AL”) at the village level in Kaliganj. From 2010 to 2012, she experienced difficulty in finding employment because of her low education level. Her financial burden also increased after her second child was born in 2011. 11.In early 2012, the neighbour first went to her parents’ house to demand repayment. She said she would not be able to repay until her father returned. The neighbour refused to give her time. He vandalised the house and beat her up. After that, the neighbour kept going to her parents’ house very often to demand repayment. 12.In June or July 2013, the Applicant came to Hong Kong to work as a foreign domestic helper to earn money to repay the loan. While she was away, her younger sister took over her role of looking after the family. 13.In October 2013, she returned to Bangladesh after termination of her employment in Hong Kong and stayed at her parents’ house. After her return, the neighbour demanded repayment. As she could not pay, the neighbour demanded her to transfer her parents’ house and land to him. She refused. The neighbour became angry. He beat her with bare hands and vandalised the house. Upon hearing the noise, some other neighbours came and intervened. They persuaded the neighbour to give her a chance to repay. The neighbour told her to go to Hong Kong to work and earn money to repay. He also threatened to kill her if she returned without money. The Applicant treated her injury at home. She reported the incident to the police. However, the police refused to register a complaint against the neighbour, unless she paid a huge bribe, as the neighbour was a very influential person in the area. In December 2013, the Applicant left Bangladesh to take up another employment in Hong Kong. 14.In June 2017, the Applicant’s sister informed her that the neighbour and his people had been to her aunt’s house and threatened her siblings and her children, though without physically assaulting them. 15.The Applicant does not believe that the Bangladeshi authorities and police could protect her because they are corrupt. She does not believe internal relocation would be feasible, as the neighbour and his people could locate her throughout the country through their powerful network. The finding of the Board 16.For reasons as explained below, the Board found the Applicant incredible and her account on which her claim was made implausible. It did not accept her evidence that she had been assaulted and threatened by the neighbour and that there is a genuine risk of harm against her, if refouled to Bangladesh. 17.She had been threatened with death in October 2013. She did not make any complaint when she came to Hong Kong for employment in December 2013. She did not lodge her claim for protection when she last entered Hong Kong in May 2014. She only did so four years later on 3 June 2018 towards the end of her 15 months’ sentence. The Board drew adverse inference on her credibility for her late complaint in accordance with section 37ZD of the Immigration Ordinance. 18.The Applicant appeared before the Board at the hearing of her appeal. She adopted her evidence contained in the hearing bundle and confirmed its correctness. She had no other evidence or document to submit to the Board. She did not wish to give evidence. After the Board had explained its concern that there were issues in her account of the events which the Board found questionable, she agreed to answer questions from the Board. But after answering a few questions about her personal background, she declined to answer further questions. 19.The centrepiece of her case is that she was at risk of harm or death from her neighbour for being unable to repay her loan of one million Taka borrowed for the maintenance of her siblings, herself and her children. The Applicant had already married, moved out of her parents’ house and had her own family to look after. Under the circumstances, the Board found it implausible that she would have left her husband to move to her aunt’s house to look after her siblings. 20.The Board found her claim that her father went missing in 2009 to take up political work implausible as he had house, land, a wife and five children to feed in his home village. He could not have disappeared without providing for his family, especially as he was a BNP leader at the village level. 21.The Board considered her account of the event internally inconsistent. It found her evidence about the loan vague and general. There was no supporting or corroborating evidence. She was unable to provide a breakdown of the loan. She knew little about the neighbour other than that he was a neighbour and an AL leader. In the circumstances, the Board considered it doubtful that neighbour would have lent such a huge sum of money to the Applicant without interest, repayment terms or security. Furthermore, as the neighbour was an AL leader whereas the Applicant’s father was a BNP leader from a well-known political rival, the Board found it difficult to accept that the neighbour would have lent under such favourable terms or at all. 22.On the evidence, the threats were made orally and mostly unaccompanied by physical assault. The injuries suffered by the Applicant during the assault were not serious. The Board found even if the evidence of threat and assault were accepted there was nothing to suggest that the neighbour had intention to seriously harm or kill the Applicant. As the neighbour was only an AL leader at village level, the Board found all along he was acting in his personal and private capacity. There was no evidence to suggest he could use the resources of the AL for his own private purposes such as to locate the Applicant outside her home village, nor had he the means to do so. 23.On the basis of objective country of origin information (“COI”), the Board found that reasonable state protection is available to the Applicant in Bangladesh. There are also alternative avenues for her to seek justice and to make complaints against the local police if they refused to act on her complaint. 24.In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face any real risk of harm if refouled to Bangladesh. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice. Legal principles applicable to judicial review 25.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Grounds for judicial review 26.After the above legal principles have been explained to the Applicant, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. She just repeated her account of the event and asked to be allowed to stay in Hong Kong longer. 27.The Applicant had not advance any grounds for review in Form 86. In her supporting affirmation, she repeated her account of the events and reiterated her fear of harm and risk of harm as she did not have money to repay her neighbour. She submitted that as the neighbour was an AL leader, he could influence AL members in other areas to locate her. In effect, she is seeking to challenge the finding of fact by the Board which is not permissible in an application for judicial review. In the absence of proper grounds of application, this Court could only review the Board’s Decision on the usual challenges such as errors of law, procedural unfairness and irrationality in the Decision. Overall scrutiny 28.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 29.Despite having been explained the Board’s concern about the credibility of her account on which her claim is based, the Applicant chose not to answer the Board’s questions about those concerns. The Board could only assess her claim on the evidence available. It assessed the evidence carefully and gave full reasons for its finding. It found the Applicant incredible and her evidence unreliable. It rejected her evidence that she had been assaulted and threatened by the neighbour and that there was a genuine risk of harm against her, if refouled to Bangladesh. These are finding of facts solely within the realm of the Board. It was on that basis that the Board found the Applicant’s feared ill-treatment was not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. Insofar as these are finding of law, they are absolutely correct. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion 30.As the proposed judicial review has no merits, extension of time to file the leave application must be refused. Accordingly, the application for the leave to apply for judicial review is also refused. Dated the 18th day of February 2025
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 [1] CACV 63/2015 (unreported) 3 November 2015 [2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [6] [2018] HKCA 524 at [14(1)] | |||||||||||||||||||||||||||||||||||||
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