Akter Sopna v. Torture Claims Appeal Board

HCAL 282/2022

[2025] HKCFI 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 282 OF 2022

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:

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Bangladesh who last arrived in Hong Kong on 16 May 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 May 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 October 2018, she did not depart and instead overstayed, and on 15 April 2020 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 brother-in-law for assisting in her mother-in-law’s land dispute with her brother-in-law. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Pannai Fakir Bari, Gouripur, Daudkani, Comilla, Bangladesh. After leaving school she worked as a teacher, married her husband and moved to his home in Mirpur, Pallabi, Dhaka where they raised a family with 3 children until 2013 when the Applicant began to work as a foreign domestic helper in Hong Kong.

3.In 2015 her mother-in-law in Dhaka started a litigation with her eldest son, i.e. the Applicant’s brother-in-law, over their land/property dispute, and for which the Applicant together with her husband were on the side of her mother-in-law and offered financial support of her litigation from the Applicant’s own income earned in Hong Kong, and for which her brother-in-law became furious and made threats against the Applicant to kill her when she returned to Bangladesh.  

4.Henceforth when her last employment was terminated in October 2018, 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 23 April 2021 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before the immigration officer due to various alleged reasons.             

5.By a Notice of Decision dated 28 June 2021 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”).

6.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 brother-in-law 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 her brother-in-law to seriously harm or kill her over what was essentially some private land dispute within her husband’s family 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 162 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 Chittagong where it would be difficult if not impossible for anyone to locate her.

7.On 12 July 2021 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 24 November 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 April 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her brother-in-law that caused her to overstay in Hong Kong to seek protection, that even if her claimed risk were real that there was no reliable evidence of any real intention of her brother-in-law to seriously harm or kill her, and that in any event it was a private land dispute between her mother-in-law and her brother-in-law within their family only without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 29 April 2022 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 to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. 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 reasonably arguable basis for her intended challenge of the Board’s decision.

10.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.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.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.

13.Moreover, the Applicant recently on 24 December 2024 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved and that it is now safe for her to return to Bangladesh.

14.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 now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 25^th 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