Akter Jesmin v. Torture Claims Appeal Board

HCAL 317/2017

[2025] HKCFI 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 317 OF 2017

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 44-year-old national of Bangladesh who arrived in Hong Kong on 30 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 August 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 January 2014, she did not depart and instead overstayed, and was arrested by police on 4 August 2014. After she was referred to the Immigration Department for investigation, she 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”) who had killed her husband for supporting their rival Bangladesh Nationalist Party (“BNP”) that she feared she would also be harmed or killed. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Narayaganj, Bangladesh. After leaving school she married her husband who was a farmer, and raised their family with 2 children in her husband’s home in Village Berbari where her husband supported BNP and regularly attended their local meetings and activities.

3.One day in 2013 there was a mass brawl in her home district between rival supporters of AL and BNP which resulted in many casualties including her husband who subsequently died from his injuries.

4.On the following night some AL supporters came to her home shouting threats from outside, but the Applicant managed to escape from the back of her house and fled from Village Berbari to hide in her parents’ house in Narayaganj.

5.As she was still fearful for her life, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 30 August 2013 when she departed Bangladesh for Hong Kong to start her employment, but when it was prematurely terminated on 26 January 2014, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 16 June 2015 and a Notice of Further Decision dated 9 January 2017 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”).

7.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found substantial grounds for believing that her perceived harm from those AL supporters upon her return to Bangladesh is real and foreseeable due to the absence of any past ill-treatment from them, that there is no evidence of any intention or political reason for them to seriously harm or kill her or to have any adverse interest in her given that she was not a BNP supporter, that in any event in the absence of 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 166 million people spread across a vast territory of more than 140,000 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 where it would be difficult if not impossible for anyone to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which she attended an oral hearing on 22 March 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 June 2017 her appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.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 the local AL supporters that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any adverse interest in her or any political reason for the AL people to harm or kill her given that she had no political involvement in BNP, and that in any event in the absence of 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.On 22 June 2017 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors and unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in groundless speculations that it is now safe for the Applicant to return to her home country.

11.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news or information relied on by the Board were not officially recognized or were simply hearsay or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12.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.

13.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 even 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.

14.In the premises, and 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.

15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

16.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I accordingly direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Bangladesh.

Dated the 11^th day of March 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