BEGUM HAZERA v. TORTURE CLAIMS APPEAL BOARD

HCAL 3736/2019

[2024] HKCFI 3152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3736 OF 2019

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;

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

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of Bangladesh who arrived in Hong Kong on 12 February 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 16 February 2015, she did not depart and instead overstayed, and was arrested by the police on 6 April 2015. 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 her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Shahid Nagar, Tamaq Potti, Narayanganj, Dhaka, Bangladesh. After leaving school she married her first husband, but after he passed away in 2010, she met and married her second husband in 2012 as arranged by her parents in her home village.

3.  However, soon after their marriage that the Applicant discovered that her husband was an alcoholic and would beat her at will whenever he was drunk, and demanded money from her so as to start his own business, and when she was unable to do so, he beat her so violently that he was subsequently arrested by police and sent to prison for 7 days.

4.  However, upon his release from prison he continued to be abusive towards the Applicant by hitting her at will, and by early 2013 the Applicant found herself unable to put up with her husband’s ill-treatments and therefore left the marriage to return to her parents’ home, whereupon her husband became furious and threatened to kill her if she failed to return to him.

5.  To avoid her husband’s threats the Applicant therefore made arrangements to leave the country to come to Hong Kong to work as a foreign domestic helper, which she did on 12 February 2014, but when her employment contract was prematurely terminated on 16 February 2015, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 December 2018 and attended screening interview before the Immigration Department with legal representation.

6.  While released on recognizance pending the determination of her claim, the Applicant was again arrested by police for using a forged identity card and undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 15 months.

7.  By a Notice of Decision dated 14 December 2018 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”).

8.  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 husband 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 husband to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic dispute between her and her husband 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 supports and assistances from various governmental departments and NGOs would also be available to the Applicant as well as reasonable internal relocation alternatives within Bangladesh with a large population of 159 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 Khulna where it would be difficult if not impossible for her husband to locate her.

9.  On 21 January 2019, 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 17 October 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 November 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 husband that caused her to overstay in Hong Kong to seek protection, and that in any event even if her claimed risk were real that it arose from some private domestic disputes between her and her husband 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 areas of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 16 December 2019, 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 was in breach of procedural fairness by unlawfully fettering its discretion in 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 decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or 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 speculation that it would be safe for the Applicant to return to her home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s claim;

(7)  That it was unfair for the Board to assess the Applicant’s BOR 2 claim without any screening interview; and

(8)  That the hearing bundle was provided to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English thereby given her insufficient time and opportunity to prepare for the appeal given her limited skills in English that she was confused as to what happened at the hearing which was procedurally unfair to the Applicant.

12.  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 relied on by the Board were not officially recognized or were just hearsays or outdated, while her complaint of not being screened for her BOR 2 claim is clearly factually incorrect as her claim under all the applicable grounds including BOR 2 was properly screened in her oral hearing before the Board during which she was able to make proper representations for her claim under all the applicable grounds. 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.

13.  As for her complaint of being provided the hearing bundle shortly before her appeal hearing before the Board with the majority of the documents in English thereby giving her insufficient time to prepare for her appeal before the Board, the Applicant did not produce any documentary evidence such as the covering letter or envelope that contained the hearing bundle to corroborate her assertion, but even if the hearing bundle was indeed late, most of the documents had in fact earlier already been provided to the Applicant while she was still legally represented by DLS, while her NCF was also completed on her own instructions by her lawyer, and that she never raised any issue over the hearing bundle during her appeal hearing before the Board when she was able to make her representations for her claim with the assistance of an interpreter without any problem. In the circumstances I do not find anything amiss arising from the hearing bundle or any merits in this complaint of the Applicant either.

14.  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.

15.  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.

16.  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.

17.  Moreover, the Applicant recently on 24 September 2024 requested in writing to withdraw her application as her problem in her home country has been solved and that it is now safe for her to return to Bangladesh.

18.  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.

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