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HCAL 2964/2018
[2021] HKCFI 2944
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2964 OF 2018
BETWEEN
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Begum Fatema |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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 P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong on 17/11/2015. She was under a domestic helper contract. Her contract was terminated on 20/4/2016. She overstayed until 13/7/2016 when she surrendered to the Immigration Department. She filed the claim in this case on 2/11/2016.
Background
2. The applicant was born on 1/9/1989 in Village Nikhilbita, District Gaibandha, Bangladesh. She attained class 8 level. She was a farmer for 11 years before coming to Hong Kong. Her family was in Bangladesh. They did not have political affiliation.
3. About October 2014, her father borrowed BDT[1] 350,000 from Kamal (“K”) for farming. The monthly interest was 10%. There was no maturity date for the loan. “K” was a well-known money lender and was a member of the “AL”.[2]
4. On 28/11/2014, “K” and 3 others came to collect the monthly interest. Her father explained that their house was burnt down recently. Her father was unable to pay. “K” was angry and threatened that if the applicant’s father could not pay, he would take the applicant as his wife.[3]
5. One week later, “K” and his men came. On knowing that her father could not pay, “K” assaulted her father and her. “K’ put the deadline to 2/2/2015, or else, he would take the applicant as his wife. She did not need treatment for the minor injuries and recovered in 2 days.
6. On 2/2/2015, “K” came for the repayment. Her father was unable to pay. “K” and his men tried to take her away but she managed to escape. “K” and his men assaulted her father causing a cut wound on her father’s head. They then left. Her father needed bandaging and ointment to his wound.
7. About late April 2015, “K” and 2 men intruded into her home. He tried to hug her on her bed. She managed to escape and hid in the jungle. “K” and his men assaulted her family. They had some ointment and needed 4 days to recover.
8. After hiding in her friend’s house for 2 days, her father took her to Dhaka for training at the employment agency. She stayed there for 6 months. She left for Hong Kong on 16/11/2015. She had no problem leaving Bangladesh.
9. While in Hong Kong, her parents told her on the phone that “K” kept on pressing for repayment and asked about her. It was not safe for her to return.
10. She did not report to the police in Bangladesh. They were corrupt. She thought “K” would try all his means to locate her. Internal relocation was not viable.
The decision of the Director
11. The Director found that there was no real risk of harm from “K” for the following reasons: [4]
a. For the several incidents when “K” assaulted her, she did not suffer any serious physical or mental injuries. She managed to escape and avoided “K”. She stayed at Dhaka safely for 6 months. The injuries did not amount to “a minimum level of severity”.
b. She was able to hide away from “K” at her friend’s house and subsequently in Dhaka for 6 months. “K” was unable to locate her. It was pure speculation that “K” would try all means to locate her. The influence of “K” was quite localised.
c. The dispute was a personal matter. There was no involvement of the AL or any public officials. There was no evidence that “K” could mobilise the AL to trace her.
d. She had not reported the threat and assault to the police. She however speculated that the police were corrupt and would not assist. There was no evidence to support this.
e. The Director acknowledged that there were wide spread corruption and human rights problems in Bangladesh. The police were ineffective. However, the government was committed to improve police efficiency and tackle corruption. The PRP [5] was set up for these purposes. The PIO [6] was commissioned to cleanse corruption and abuse of power. Any citizen could complain to higher authority against a police officer. News reports revealed that police officers and members of political parties were arrested for committing offences. As a whole, there was evidence that the Bangladesh government was capable of exercising due diligence in protecting citizens.
f. The law in Bangladesh allowed freedom of movement within the country. Its population was about 160 million. Given her age and background, she should be able to relocate to Dhaka.
12. The Director rejected all claims on 7/3/2017.[7]
The decision of TCAB
13. The applicant attended a TCAB hearing on 8/8/2018. The adjudicator pointed out the following to conclude that there was no genuine and substantial risk to her life:[8]
a. The threat to take the applicant as his wife was an idle threat. The adjudicator doubted why “K” would take the applicant as his third wife instead of his money back.
b. Her father was the principal debtor. He should be the one responsible for repayment. It would not be in K’s interest to kill her. Her family was safe after all these years. The applicant could not explain why “K” targeted her.
c. “K” had threatened to take the applicant as his wife as a tactic to put pressure for repayment. However, three years had passed, the applicant had fled. “K” should be directing his attention to the applicant’s sister with the same tactic. This did not happen.
d. The applicant arranged work in Hong Kong to help her family to repay the loan. However, she did not work for long. She got married in Hong Kong in 2018 and forgot about the loan. The adjudicator doubted whether the loan actually existed.
e. According to her evidence, her father was able to grow crops for profit shortly after the fire. He used the profit from selling the crops to build a small room for the family instead of repaying the loan. Her father should be able to repay gradually after these few years.
14. The adjudicator rejected the applicant’s claim on 26/11/2018.
Judicial review
15. The applicant filed the leave application for judicial review on 24/12/2018. In her affirmation, she did not point out any error in the TCAB decision.
16. In judicial review, this court is to decide whether there is any error in law and procedure, whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
17. I agree with the comments of the adjudicator. The applicant’s evidence could not support a real risk of harm. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
18. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 4th day of October 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 4 October 2021
Begum Fatema
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 October 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6604/17/3/259/B789
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3181/16
(Formerly RBCZ 13572/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Bangladesh Taka.
[2] Awami League.
[3] “K” had 2 wives already.
[4] Decision of the Director dated 7/3/2017, §§19—27.
[5] Police Reform Programme.
[6] Police Internal Oversight.
[7] Decision of the Director dated 7/3/2017, §§29—44.
[8] Decision of the TCAB dated 26/11/2018, §§33—50.
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