AKTER LABONI v. TORTURE CLAIMS APPEAL BOARD

HCAL 365/2019

[2022] HKCFI 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 365 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Bangladesh who last arrived in Hong Kong on 31 March 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 31 March 2018 or within 14 days of its early termination, but when she did not commence her employment at all, nor did she depart and instead overstayed in Hong Kong, and 6 months later on 28 December 2016 she surrendered to the Immigration Department and raised a non-refoulement claim 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 she supported their rival Bangladesh Nationalist Party (“BNP”). She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Koarpur, District Shariatpur, Bangladesh. After leaving school she married her husband and moved to live with him and his parents in their household, and joined them as BNP supporters and regularly attended the Party’s local meetings and rallies.

3.  One day in April 2014 while the Applicant together with her husband and in-laws were having a meeting with their fellow BNP supporters in their home, some local AL supporters arrived with the police to demand that they dismissed their meeting which they did.

4.  About one month later when the Applicant together with her husband and in-laws were having another meeting with their fellow BNP supporters, those AL supporters again came to interrupt the meeting, but this time they brought along wooden sticks and other weapons and attacked the BNP supporters including the Applicant that she suffered injuries to her legs which required medical treatments.    

5.  Later in June 2014 when she heard that those AL supporters were looking for her, the Applicant became fearful for her safety that she left her husband and fled to Dhaka to take shelter in a friend’s place for about one year without further incidents, but as she still feared of those AL people, she decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 31 March 2016 when she arrived in Hong Kong for her employment, but she never actually commenced her employment, and thereafter she overstayed in Hong Kong until some 6 months later on 28 December 2016 when she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 January 2018 and attended screening interview before the Immigration Department with legal representation.     

6.  By a Notice of Decision dated 25 January 2018 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”).

7.  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 reliable evidence or reason for them to specifically target the Applicant for harm or of any real intention to harm 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 157 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other part of Bangladesh away from her home district in large cities such as Chittagong and Khulna where it would be difficult if not impossible for those local AL members to locate her.

8.  On 7 February 2018 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 2018 before the Board during which she gave further evidence and also answered questions raised of her claim by the Adjudicator for the Board. On 28 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence coupled with her very superficial knowledge of BNP that it doubted the credibility of her claim of fear of harm from the AL people, which was further undermined by her failure to raise such claim upon her first arrival in Hong Kong until some 6 months later, and that given her own concession of being just an ordinary BNP supporter without any official post in the party that the Board failed to see any reason why the AL people would have any adverse interest in her at all, and concluded that the Applicant had failed to provide a truthful account of the events that led to her departure from Bangladesh, and that she will not face any real risk of harm from the AL people or anyone else upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.       

10.  On 11 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 75 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises and 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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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