AKTER MORJINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 404/2023

[2024] HKCFI 2985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 404 of 2023

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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 17 March 2023 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 15 February 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 November 2021 (the “Notice”), refusing her application for non-refoulement protection.

Background

2.  The Applicant is a Bangladeshi national.  She last entered Hong Kong on 24 August 2019 to work as a foreign domestic helper.  She overstayed in Hong Kong upon termination of her employment.  She was arrested by the police for overstaying on 14 December 2020 and referred to the Immigration Department on 18 December 2020 when she made a non-refoulement claim.  In due course, her non-refoulement 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 application was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.  However, she had returned to her home country before her leave application came to be processed.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims she will be harmed or killed by members of the Awami League (“AL”) in her locality because of her support for the Bangladesh Nationalist Party (‘BNP”) and by her ex-husband, if returned to Bangladesh.

4.  The Applicant, now aged 39, was born and raised in Gohinkhali Village, P.O. Boroharipur, PS. Borura, Comilla District, Bangladesh.  She is married.  Her son and seven siblings are living in Bangladesh.  She received formal education for 10 years.  She had 6 years’ experience working as a garment worker, package helper, and domestic helper in Dhaka, Oman, and as a foreign domestic helper in Hong Kong. 

5.  The Applicant was a supporter of the BNP.  One day in 2009, when she was queueing to enter the voting booth, she was approached by some AL members, who suggested her to vote for the AL.  She refused.  They continued to put pressure on her.  Eventually, she left without voting.  After that, she received calls from the AL members once a month threatening to kill her when they saw her again if she refused to change her political party.  When she ran into those AL members on the road, they verbally threatened her.  Due to the constant threats, she suffered from mental torture, but she was never physically attacked.

6.  The Applicant married in 2009.  Shortly after marriage, her husband failed to support her living and started assaulting her once or twice a month.  She did not sustain any injuries.  In 2012, her husband had a second marriage, but provided her with a rented place to live in.  In 2013, she gave birth to their son and hoped that her husband would return to her.  But eventually, they separated.  Her husband threatened her not to return to her mother-in-law’s home and not to create any troubles to his second marriage.

7.  The Applicant was supported by her brother. Then she went to work in Oman, leaving her son with her parents-in-law.  When she returned to Bangladesh, her husband made the same threats to her.

8.  At the hearing before the Board, the Applicant added another source of fear.  She said she visited her son in her ex-parents-in-law’s house once a month.  Her ex-husband wanted to “live with [her]” and harassed her when she visited her son.  On one occasion, he even tried to strangle her.  He threatened to harm her seriously and murder her if she went to his mother’s home. She last saw her ex-husband in 2018 when she visited her son.

9.  The Applicant does not believe that the Bangladeshi authorities and police could protect her, as they are corrupt.  She does not believe internal relocation would be viable, as the AL members could locate her throughout the country through their powerful network.

The finding of the Board

10.  The Board accepted the core of the Applicant’s case.  It accepted that she was a BNP supporter and received threats from the AL members in her village.  However, it was unable to accept her activity at this low level was widely known or of sufficient adverse interest to draw adverse attention from the AL members outside her local area.  The Board found that the low-level threats were sporadic and opportunistic.  It found such threats did not reflect any real intention to harm her and the nature of the threat was not sufficiently serious as to constitute harm by itself.

11.  The Board also accepted her evidence about her ex-husband’s threat and that he had attempted to strangle her in 2012-2013. However, it regarded the incident to be an isolated one, which occurred at a particularly troubled time in their relationship.  Such incident was never repeated thereafter.  It also accepted that he did assault and threaten her before.  However, the Board was not satisfied that her ex-husband’s past conduct towards her amounted to serious harm under the USM.  In any event, it found on the evidence, that any actual harm or risk of harm from her ex-husband, had diminished significantly since 2012-2013.

12.  In conclusion, the Board was unable to find the Applicant would be at any real risk of harm or ill-treatment from the AL members or her ex-husband if refouled to Bangladesh.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

14.  The Applicant did not advance any grounds for review in her Form 86.  In her supporting affirmation, she reiterated that she had life threat in her home country and that the AL members were very powerful and influential that they could kill her at any time in any place in Bangladesh.  In effect, by her grounds, she seeks to challenge the finding of fact of the Board which for reasons as explained in the preceding paragraph is not permissible.  In the absence of any specific grounds of review, the Court could only focus on errors of law in the Decision, procedural unfairness in the making of the Decision and irrationality in the Decision.

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds 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 assessed the Applicant’s claim on the basis of his case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant 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

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

17.  The Applicant has been removed to her home country.  The Court does not have her contact address in Bangladesh.  The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]