Begum Rani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3233/2019

[2025] HKCFI 4763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3233 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 30 October 2019 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 18 October 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 November 2018 (the “Notice”), refusing her application for non-refoulement protection.

Background

2.The Applicant is a national of Bangladesh, now aged 34.  She entered Hong Kong on 15 May 2015 to work as a domestic helper.  Her employment was prematurely terminated.  She overstayed since 5 August 2015.  She was arrested by the police for having overstayed on 17 August 2016.  She made a non-refoulement claim by way of written representations dated 19 August 2016 and 7 February 2018.  In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  Her claim 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.

3.Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, she claims that if returned to Bangladesh, she will be ill-treated or even killed by her husband, his second wife and her people because of a family dispute. 

The finding of the Board

4.The Applicant testified before the Board.  The Board noted that she arrived in Hong Kong on 15 May 2015, but made no attempt to enquire about non-refoulement protection.  Even after her employment contract was terminated on 21 July 2015 when she had to return to Bangladesh, she made no enquiries for protection and chose to overstay until she was arrested more than a year after her visa had expired.  It rejected her explanation that she had no knowledge on how to seek protection here.  It found her inaction inconsistent with someone who had genuinely fled her home country for fear of her life.  It rejected her evidence that she had come to Hong Kong to seek protection from the threats of her husband, his second wife, and her people.  It found that she only fabricated her claim after she was arrested to avoid being removed back to Bangladesh.  

5.The Board also found her evidence that the rickshaw puller could have single handedly prevented the three to four assailants sent by the second wife from hurting her implausible, incredible and impossible.  As the second wife only wanted her to leave her husband and as the Applicant had effectively left him when she left Bangladesh, the Board found her evidence that the second wife sent unknown men to threaten her when she was in Hong Kong unbelievable and concocted.   The Board rejected her evidence and found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. 

6.However, the Board went on to consider her claim as she asserted.  It found all the injuries suffered by the Applicant, whether physical or mental, fell far short of the minimum level of severity.  It observed that if the second wife had any real intention to harm the Applicant, she could have done so easily, but she did not.   She only made some indirect empty threats.  The Board found she had no real intention to harm the Applicant, let alone to kill her.  It found her fear of harm was not genuinely held.  Despite her allegations that her husband was the right-hand man of an Awami League (the “AL”) leader and a gangster hired by the AL, these positions would not make him a public official or a person acting in an official capacity in relation to the ill-treatment and harm inflicted on her.

7.On the basis of country of origin information (“COI”), the Board considered reasonable state protection would be available to the Applicant on her return to Bangladesh.  Besides, as an able-bodied person, it would not be unduly harsh and unreasonable for her to relocate to other parts of Bangladesh, which could further negate the perceived risk of harm which was localised in her home area.

8.Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. Hence, the Board dismissed her appeal.

Grounds for judicial review

9.At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, she confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, she had advanced the following grounds of application in the Form 86:

(1)  the Board had unlawfully fettered its discretion by refusing her appeal;

(2)  the Board acted in a procedurally unfair manner in dealing with her appeal;

(3)  the Board’s Decision is unreasonable, or irrational, or is the result of procedural errors or unfairness;

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

(5)  she was not given a fair opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submissions; and

(6)  the Board’s Decision relied on the source of news which is not officially recognized or is hearsay.

10.The Court is familiar with these grounds, which appear to be template grounds used in some other application and have no bearing to the facts of this leave application.  The Applicant said that the grounds were prepared by someone on her behalf after she told him about her case.  She said she did not know what was written in those grounds.  After these grounds were explained to her, she was asked about particulars of these grounds.  She was unable to provide particulars and confirmed that she had no complaints about errors of law, procedural unfairness and irrationality in the Decision.  In relation to Ground (5), in particular, she confirmed she had been given plenty of opportunity to make submissions to the Board.  None of these grounds is substantiated.  In the absence of proper grounds or grounds with adequate particulars, the court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

11.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It did not find the Applicant’s evidence credible.  It gave reasons for its finding.  Hence, it rejected her evidence and found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM. 

12.The Board did not stop there.  It went on to assess her claim on the basis of the case as she asserted.  It found all the injuries suffered by the Applicant, did not attain the minimum level of severity, the second wife had no real intention to harm the Applicant, her husband was not a public official or a person acting in an official capacity when inflicting the ill-treatment on her, the ill-treatment suffered by the Applicant did not arise on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol and her fear of harm was not genuinely held.  These are finding of facts.  Applying the law applicable to non-refoulement protection to these facts, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed finding of fact and of the law.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decisions.  The Court could detect no error of law or procedural unfairness in the Decisions.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had 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

13.For the above reasons, the Applicant’s leave application is refused.

Dated the 9^th day of October 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