MUKTA FARJAN SHRMIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 252/2021

[2024] HKCFI 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 252 OF 2021

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 35-year-old national of Bangladesh who last arrived in Hong Kong on 30 March 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 4 February 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 November 2017, she did not depart and instead overstayed, and was arrested by police on 2 January 2020 for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 10 weeks, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as her husband supported their rival Jamaat-e-Islami (“JEI”). She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Shekhpara Shekhati, District Narail, Bangladesh. After leaving school she married her husband and moved to his home district in Noapara, Abhaynagar Jessore District where they raised a family with a daughter.

3.  Her husband was a keen supporter of JEI regularly attended their local meetings and activities as well as making financial supports and donations to them, but which she heard that some local AL supporters resented and had made threats against her husband to try to stop him from supporting JEI.

4.  One night in January 2014 a group of local AL supporters came to the Applicant’s home to drag her husband outside and beat him violently with wooden sticks and other weapons, and when the Applicant tried to intervene they also punched and kicked her violently. Eventually her husband fell to the ground and lost consciousness, and was subsequently taken to the hospital for emergency medical treatments, but he later died in the hospital from his injuries.

5.  After receiving treatments for her own injuries, the Applicant reported the attack to the police, but when those AL supporters heard about it, they came to her home again to threaten and beat her, and before they left they warned her that if she did not withdraw her report to the police, they would return to kill her and her daughter.

6.  As she became fearful for their safety, the Applicant fled with her daughter from her home district to Dhaka to take shelter in a relative’s place, and in order to support herself and her daughter, she therefore made arrangements to leave the country to come to Hong Kong to work as a foreign domestic helper, which she did in August 2014, but when her last employment was prematurely terminated in February 2017, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong, and after her subsequent arrest by the police in 2020, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 June 2020 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 7 October 2020 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 those local AL supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her as their target was against her husband which they had already achieved after having killed him and that there is no further political reason for them to still have any adverse interest in her, that in any event in the absence of 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 reasonable internal relocation alternatives are available in Bangladesh with a large population of 162 million people spread across a vast territory of more than 140,000 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 anyone to locate her.

9.  On 19 October 2020 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 26 November 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 February 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of threats from those local AL supporters arising from their dispute with her deceased husband but found no reliable evidence of any real intention of them to seriously harm or kill her or that they would still have any adverse interest in her after all these years given that they had already murdered her husband who was their real political target, and that in any event it was their political dispute with her deceased 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 parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 1 March 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) 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;

(2) That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3) That the Board failed to meet the greater care and duty owned to a self-represented claimant;

(4) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5) That in dismissing the Applicant’s appeal the Board failed to show any indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conduct any analysis of the supporting documents or turned his mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays in its assessment of the hardship that the Applicant would face if returned to her home country;

(7) That the Board had primarily relied on the facts and information given in the Director’s decision without making its own enquires or assessment of the Applicant’s claim; and

(8) That the Adjudicator had relied on cases which are outdated without proper consideration of the dramatic changes in the Applicant’s home country that the lack of reliable sources of information had resulted in the Board making groundless speculations in its decision.

12.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any 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 did the Board unlawfully fetter its discretion or that the decision was 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 were not officially recognized or outdated, or in what way did the Board fail to make its own enquiries and assessment of the Applicant’s claim. As such, and as none of these assertions were properly elaborated or presented with any relevant or necessary particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim 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 him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  Moreover, the Applicant recently on 3 April 2024 filed an affirmation requesting to withdraw her application as her problem in Bangladesh has been solved and that she now wants to return to her home country.

17.  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 of no more problem 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