CHAKMA SONALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3314/2019

[2022] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3314 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Bangladesh who arrived in Hong Kong on 6 November 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 18 February 2018, she did not depart and instead overstayed, and was arrested by police one year later on 27 February 2019 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband and/or by the Muslim community for religious reason as she was from the Chakma tribal group whose religion was Buddhism. she was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born as ethnic Chakma and raised in Village Longodu, District Rangamati, Chittagong Hill Tracts, Bangladesh. After leaving school she married her husband in an arranged marriage and moved to reside with his family in Village Komolchari Mukh.

3.  Soon she discovered that her husband was an alcoholic and a drug addict and indulged in gambling, and whenever he was drunk or lost money in gambling he would be violent and abusive towards the Applicant by scolding and hitting her at will, and frequently demanded money from her to repay his gambling debts.

4.  By the end of 2014 the Applicant found it intolerable to put up with any further abuses by her husband and sought help from the local police who however regarded such matter as a domestic dispute and refused to take any action, and in early 2015 after she was advised to leave her husband to save her own life, the Applicant fled to Dhaka to take shelter in a friend’s place where she found a job working in a factory before coming to Hong Kong in November 2015 to start her job as a foreign domestic helper, but when her last employment was prematurely terminated, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 19 June 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 17 July 2019 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed her perceived risks of harm upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from her husband, that there is no evidence of any real intention of her husband to seriously harm or kill her, that in any event it was a private domestic dispute between her and her husband without any official involvement that state or police protection would be available to the Applicant if resorted to, that there is no evidence of any threats or harm or ill-treatment from the Muslim community against the Applicant as an ethnic Chakma or over her religious belief other than her own groundless speculation, 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 159 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka where she had stayed before without incidents and where it would be difficult if not impossible for her to be located.

7.  On 23 July 2019 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 11 October 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no evidence of any further threats from her husband since the Applicant left the country or any harm or ill-treatment at all in the past from the Muslim community against her either due to her ethnicity or her religion that it doubted the credibility of her claim of fear to return to her home country which had been further undermined by her failure to raise her claim upon her first arrival in Hong Kong until much later and only upon her arrest by the police, that on her own evidence that her husband had since she left the country remarried another woman that it was not accepted that he would still have any adverse interest in her after all these years, and that in any event it was a private domestic dispute between her and her husband without any official involvement that state/police protection would be available to her if needed upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 6 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

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

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board significantly relied on the source of news not officially recognized or were simply hearsay or outdated considering the dramatic changes in her home country resulted in its groundless speculations that it is safe for her to return to her home country; and

(6) Procedural unfairness in that the hearing bundle was given to her just 6 days before the appeal hearing with the majority of the documents in English thereby given her insufficient time to prepare for the appeal hearing before the Board due to her limited skills in English and without the means to obtain proper translation or interpretation of those documents that it was an unfair hearing to her due to lack of care from the Board to make appropriate arrangement in relation to the hearing bundle.  

10.  These are however all just broad and vague assertions of the Applicant containing several key words and 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 act in a procedurally unfair manner, or what relevant COI which the Board relied on were unofficially recognized or were hearsay or outdated, failed to act Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way were the decision unreasonable or irrational in the public law sense. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

13.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interview and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any issue with the hearing bundle or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, nor do I find this complaint of hers reasonably arguable for her intended challenge either.

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 decision that the risk of harm in her claim 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 her 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.  Furthermore, the Applicant recently on 3 May 2022 field an affirmation requesting to “close” her application as she wants to return to her home country because it is now safe for her to do so.

17.  In the premises, as I am for the reasons given 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 that it is now safe 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