BEGUM KOHINUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1989/2019

[2024] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1989 OF 2019

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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 11 July 2019 of the Torture Claims Appeal Board/

Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”), dismissing her appeal against the Director’s 2^nd Decision on BOR 2 risk.

2.  The applicant requested an oral hearing.  However, she was absent at the hearing on 25 September 2024.  I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 44, is a national of Bangladesh.  She last entered Hong Kong to work as a foreign domestic helper (“FDH”) on 16 April 2014.  Her employment contract was prematurely terminated on 23 April 2014 and she overstayed since 8 May 2014.  The applicant was arrested by the police for overstaying on 30 August 2014 and she made a non-refoulement claim on 2 September 2014.  The claim was made on the basis that, if refouled, she would be harmed or even killed by supporters of Awami League (“AL”) because of her active participation in Bangladesh Nationalist Party (“BNP”) activities.  She also feared harm from her husband because she did not seek his prior consent before coming to work in Hong Kong.

5.  According to the applicant, she became a BNP supporter since 2000.  One day in 2002, around 10-12 unknown people with wooden sticks gathered outside the applicant’s house.  She immediately left the house with her daughter and later found out that her house was vandalised.  From what her husband heard from the neighbours and given that she had no other enemy, the applicant speculated that this was done by AL members.  To avoid further trouble, she stopped participating in BNP activities thereafter.

6.  In around 2004/2005, the applicant’s husband joined AL and later became a leader in her locality.  During the General Election in 2008, the applicant had verbal disputes and fights with her husband every 2-3 days because of a difference in political views.  Subsequently, her husband ran into financial trouble due to the failure of his business and he often argued with the applicant on financial matters.  In mid-2012, the applicant ran away with her children and moved to live with her parents as she was tired of arguing with her husband.

7.  In June 2013, the applicant came to Hong Kong to work as a FDH.  Her husband was furious about her work as a FDH because she did not seek his prior consent.  Thereafter, the applicant learnt from her parents that her husband would come over threatening to kill her from time to time.

8.  The applicant was of the view that she would not be offered protection by the police because they sided with the ruling AL, of which her husband was a member.  She also considered internal relocation not viable because she believed that her husband could utilise the network of AL to locate her whereabouts.

9.  In the additional facts provided by the applicant, she claimed that her family members had been arrested by the police and that AL members had been to her house looking for her.  The applicant also claimed that the police had database to retrieve citizens’ residential address in Bangladesh.

10.  Details of the applicant’s story can be found in paragraphs 7-26 of the Director’s Decision dated 4 June 2015 (“the Director’s 1^st Decision”) and paragraph 3 of the Director’s Decision dated 12 May 2017 (“the Director’s 2^nd Decision”).

The Director’s Decisions

11.  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”).

12.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the identities of the 10-12 unknown people that vandalised her house were in doubt and that even if they were AL members, such low intensity and frequency of past ill-treatment indicated a small future risk of harm upon her return to Bangladesh [33]; (ii) the past behaviour of the applicant’s husband showed that he had no real intention to seriously harm or kill her [34]; (iii) the matter with her husband with private in nature with no evidence of involvement from the Bangladeshi authorities [35]; (iv) the applicant’s delay in seeking non-refoulement protection was inconsistent with the conduct of someone genuinely in fear [36]; (v) state protection would be available [37]-[39];
(vi) internal relocation would be viable [40]-[42] and (vii) the applicant’s case failed to meet any of the requirements under BOR 3 risk [43], Persecution risk [44]-[47] or Torture risk [48]-[51].

13.  By way of the Director’s 2^nd Decision,the Director dismissed the applicant’s claim.  The Director found the applicant’s claim lacked supporting evidence and that she failed to provide any updated information to substantiate the claim that her right to life under BOR 2 would be violated [3]-[4].  The Director therefore rejected the applicant’s claim on BOR 2 risk.

The Board’s Decisions

14.  The applicant appealed the Director’s 1^st Decision to the Board.  On 29 August 2016, the Board conducted an oral hearing.   

15.  The Board noted that the dispute concerned was private in nature with no evidence of involvement from the Bangladeshi authorities [7]-[10].  Meanwhile, criminal damage of property is not a basis for non-refoulement claim and that the applicant had not suffered any injury that reached the requisite level of severity [11].  Furthermore, state protection and internal relocation would also be available according to the country of origin information [17]-[20].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk[5]-[14], [21]-[31].  In any event, the Board had significant concerns towards the applicant’s credibility given her delay in seeking non-refoulement protection [32]-[34].

17.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

18.  The applicant also appealed the Director’s 2^nd Decision to the Board.  Her Notice of Appeal however was filed three months out of time [4].  The applicant’s explanation was that she did not receive the Director’s 2^nd Decision in time.  Such explanation was not accepted by the Board as evidence showed that the Director’s 2^nd Decision was sent to her stated address by post timely and had not been returned undelivered.  In fact, a copy of the Director’s 2^nd Decision had also been duly sent to the Duty Lawyer Service [7].

19.  The Board found there were no special circumstances that would make it unjust to disallow the late filing [8].  The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed.

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

20.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

21.  The applicant has raised the ground that the Board was procedurally unfair because she did not receive the Director’s 2^nd Decision.  She was therefore late to file her notice of appeal against the Director’s 2^nd Decision.

DISCUSSION

22.  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).

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

24.  In the Board’s 1^st Decision, the Board found that the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk was unfounded.  She did not seek leave for judicial review of the Board’s 1^st Decision.  If her claim fails on the BOR 3 risk, her claim of BOR 2 claim cannot sustain[1].

25.  The Board has given its reasons for not accepting the applicant’s late filing of the notice of appeal.  Those reasons cannot be faulted.  Even if the Board were to allow the applicant to file her notice of appeal, her appeal against the Director’s 2^nd Decision would be bound to fail.

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.