Akter Tahmina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3051/2019

[2025] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3051 OF 2019

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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 Decisiondated 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 25 April 2025.

The applicant

3.The applicant, aged 37, is a national of Bangladesh. She worked as a domestic helper in Hong Kong in 2015. Her employment contract was terminated prematurely, but she did not depart. She surrendered to the Immigration Department and lodged a non-refoulement claim for the reason that, if refouled, she will be harmed or killed by the money-lender because she was unable to repay her loan from the creditor.

4.According to the applicant, as she was unable to repay her debt, the money-lender and his people had assaulted her and humiliated her. They attacked her with bare hands, chopper and sharp objects. She was injured and had to be medically treated in hospital. She did not agree to stay in the hospitals for treatment, but discharged herself. Details of her story are set out in paragraph 6 of the Notice of Decision dated 21 September 2018.

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment is indicative of a small future risk of harm upon her return to Bangladesh; (ii) state protection will be available; and (iii) internal relocation is viable. [17]-[22]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 15 July 2019, the Board conducted an oral hearing for her with an interpreter.

8.Having considered the applicant’s evidence, the Board found her to be an honest witness on the facts of her case. She had paid off the debt. What she concerns is her husband’s indebtedness to the creditor. Her husband had signed the loan document, but she did not sign any guarantee for his debt. The Board therefore concluded that the applicant should face no real risk of harm if she returns to Indonesia and that internal relocation is viable in case the creditor causes her trouble. [29]-[46]

9.For the above reasons, the Board dismissed her appeal.

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

10.The applicant has filed Form 86 dated 16 October 2019 for leave to apply for judicial review of the Board’s Decision. There is no ground attached to Form 86.

11.The applicant has raised no specific ground to challenge the Board’s Decision in her affirmation in support of her application.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board might not be wrong, but she wanted this Court to review the Board’s Decision for her.

14.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.”

15.In my view, the Board was entitled to come to its views above.

16.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

18.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 appeared in person.