MONDAL SHILPY ADURI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1966/2019

[2024] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1966 OF 2019

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BETWEEN

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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 Decision dated 3 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. By a letter dated 23 August 2024, the applicant requested the case to be adjourned for her to obtain legal aid from the Legal Aid Department. The Court has to consider her reasons for her late application as Form 86 was filed on 12 July 2019. The Court also has to consider the merit of her case before making an order adjourning her case. The hearing therefore proceeded as scheduled.

3.  The applicant was absent at the hearing on 26 August 2024. I declined to adjourn the case and I shall deal with her application on paper.

The applicant

4.  The applicant, aged 37, is a national of Bangladesh. She arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 9 August 2015. Her employment contract was prematurely terminated on 1 February 2016 and she overstayed since 16 February 2016. The applicant was arrested by the police on 12 March 2017 and she made a non-refoulement claim on 16 March 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by a Muslim Awami League leader (“the Muslim AL leader”) because she had injured him due to a religious dispute.

5.  According to the applicant, she is a Catholic. In 2014, when she was working as a news reporter for a local newspaper, she found out that the Muslim AL leader was constantly creating troubles to non-Muslims as well as teasing females. She therefore reported his evil acts on the newspaper. Soon afterwards, the Muslim AL leader started going to the grocery of the applicant’s father to threaten her. Although the applicant made a report to the police, no follow up action was taken by them.

6.  On the Easter Sunday in 2015, the Muslim AL leader and his underlings went to confront the applicant and her family for celebrating Easter. This eventually escalated into a fight, whereby the applicant stabbed the Muslim AL leader at his abdomen (“the Easter 2015 attack”). The applicant then fled the scene with her family to her grandfather’s home. As the applicant’s mother was in a serious condition, her uncle drove them back to the hospital at their hometown a few hours later, where her mother passed away shortly afterwards.

7.  Subsequently, the applicant and her father were informed by neighbours that their home was burnt down. The applicant managed to flee to Dhaka with her father and brother before the police arrived at the hospital. Thereafter, the applicant parted ways with them. She received training as a domestic helper for a few months and she eventually left Bangladesh for Hong Kong to work as a FDH in August 2015.

8.  While in Hong Kong, the applicant maintained contact with her sister and was told that the Muslim AL leader had filed a case against her. Meanwhile, the police was also looking for her at her grandfather’s home as there was an outstanding murder charge against her. The applicant was of the view that she could not seek protection from the police because they acted for the interest of AL, so that she might be persecuted in the absence of due process. The applicant also considered internal relocation not viable because she feared to be located by AL given their extensive network and power. The fact that she was of a minority religion also increased her risk to be identified.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 23 March 2018 (“the Director’s Decision”).

The Director’s Decision

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

a. 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”);

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

c. 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”); and

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

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment by the Muslim AL leader indicated the unlikelihood that she would be harmed upon return to Bangladesh. There was also no concrete evidence showing that the applicant was being pursued by the police and that in any event, the country of origin information (“COI”) showed the availability of judicial safeguard. There was no indication that the applicant would be ill-treated simply for being a non-Muslim female [15]-[24].

12.  Moreover, (i) state protection would be available [25]-[27]; (ii) internal relocation would be viable [28]-[31] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [32]-[37], Persecution risk [38]-[42] or Torture risk [43]-[46].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 25 October 2018 and 26 April 2019, the Board conducted oral hearing.

14.  The Board considered that the applicant had not been an entirely truthful witness and had exaggerated/fabricated her claims [80]. The Board had difficulty in accepting that the applicant had been charged with murder and considered this was merely her speculation. Given her contradictory evidence about the arrest warrant, the Board also rejected its existence [89]. In any event, the Board found it unbelievable that the applicant could leave Bangladesh without difficulty if she was faced with a murder charge [90]-[91].

15.  Meanwhile, although the Board accepted the applicant’s involvement in a local newspaper, it considered that she had exaggerated her role in how she obtained information [97]-[98]. The Board was satisfied that the applicant was providing information about the Muslim AL leader to the newspaper and that he had threatened her and inappropriately manhandled her as a result [101]. However, the Board was not convinced that the Easter 2015 attack had occurred. The Board considered the reason for the applicant and her family to leave her hometown was that they could no longer tolerate the harassment and threats by the Muslim AL leader as a result of the applicant’s work at the newspaper [102].

16.  Given the timing of the applicant’s passport application, the Board was of the view that she left Bangladesh primarily for employment purpose [103]. As to the applicant’s fear of harm based on her religion and gender, the Board considered this plausible in light of the available COI. Yet, the COI also showed that the government had enacted laws and policies to address such issues [106]-[117], [124]. In any event, the discrimination faced by the applicant had not reached the requisite threshold of persecution given there was no evidence that she had been denied access to service such as education, health or employment [128].

17.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12]-[31], [129]-[146]. Furthermore, internal relocation [104]-[105] and state protection [118]-[121] would also be available according to the COI.

18.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

19.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

20.  The applicant has filed an affirmation, in which she did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

21.  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).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

23.  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.”

24.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues she had raised with her. In my view, the Board was entitled to come to its views above.

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

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

DISPOSITION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.