MUNNI LAKY AKTER v. TORTURE CLAIMS APPEAL BOARD

HCAL 145/2024

[2026] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 145 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who last arrived in Hong Kong on 26 May 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment on 26 May 2023 or within 14 days of its early termination, but when her employment was prematurely terminated on 11 September 2021, she did not depart and instead overstayed, and on 8 April 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of political party Awami League (“AL”) as she 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 Village Kathalia, District Jhalkathi, Bangladesh. After leaving school she worked in the factories, got married and raised a family a child in her husband’s home district in Gazipur, Dhaka, and supported JeI regularly attended their local meetings and activities without holding any official post in the party.

3.  During her attendance of JeI’s activities, she and her fellow JeI supporters often came into violent confrontations with the AL supporters and suffered threats and beatings by them, and on one occasion in 2014 while on the street of Gazipur, she was attacked by a group of unknown men that she fainted and collapsed on the ground, and was later brought to a local hospital for medical treatments.

4.  As a result she became fearful for her life and therefore made arrangements to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in late 2014 when she arrived to start her employment, but when her last employment was prematurely terminated in September 2021, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong and subsequently raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 November 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 4 January 2023 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 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 or to specifically target her for harm given that she was just an ordinary JeI supporter without holding any official post in the party, 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 165 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 where it would be difficult if not impossible for anyone to locate him.

7.  On 18 January 2023 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 6 November 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 21 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from certain local AL supporters that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of those local AL supporters to seriously harm or kill her or any reason to specifically target her given that she was just an ordinary JeI supporter without holding any official post in the party, and that in any event in the absence of 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 by anyone that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 12 January 2024 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)   That the Board was in breach of procedural fairness for unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

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

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

(4)   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 error or unfairness;

(5)   That the hearing bundle was given to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English that there was insufficient time for her to prepare for the hearing given her limited skills in English and being unrepresented that she was unable to obtain proper translations for those documents which is procedurally unfair to the Applicant;

(6)   That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in its groundless speculation that it is safe for her to return to her home country.          

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 was the decision 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 by the Board were not officially recognized or were hearsay or outdated, while she never produced any documentary evidence that the hearing bundle was provided to her late before her appeal hearing other than her bare assertions, nor did she raise any issue to the Board or request for any adjournment of the hearing to give her more time to prepare for her appeal. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, 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.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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 her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  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.

14.  Moreover, the Applicant has recently in writing requested to withdraw her application as it is now safe for her to return to her home country.

15.  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 that it is 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