HCAL 171/2018
[2019] HKCFI 1036
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 of 2018
BETWEEN
Begum Roksana
Applicant
and
Adjudicator of the Non-refoulement Claims Petition office
1st Putative Respondent
Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 20 November 2014 with permission to work as a foreign domestic helper up to 20 November 2016 or within 14 days of early termination of her employment contract. On 31 December 2015 her employment contract was prematurely terminated but the applicant did not depart and instead overstayed until 29 January 2016 when 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 her husband’s creditors for failing to repay his loans on his behalf. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Village Pakamasjid, District Madaripur, Bangladesh. After leaving school she married her husband and moved with him to Launch Ghat in Madaripur, where she raised three children.
3. As her husband was mostly unemployed during the marriage, the applicant in 2011 started to work as a housemaid in Madaripur to support the family, but in 2013 her husband left her to hide from his creditors to whom he owed a lot of money.
4. One evening in January 2014 some men came to her home looking for her husband, and when they could not find him, they claimed to be members of the ruling political party Awami League (“AL”) that her husband owed them a lot of money, and demanded the applicant to either produce her husband to them or to repay his debts for him, and when the applicant was unable to do either, they started to punch and kick her and her son and also broke things in her home until her neighbours intervened that they left.
5. After the incident the applicant fled with her children to her parents’ home, but one day in February 2014 those men came to her parents’ home and threatened the applicant with a pistol demanding her to either produce her husband to them or to repay his debts for him, and before they left they slapped and punched the applicant.
6. After these men had left the applicant realized that it was no longer safe to remain in Bangladesh, and therefore paid an agent to find her employment in Hong Kong as a foreign domestic helper, and on 19 November 2014 she departed for Hong Kong to start her employment, but when her contract was prematurely terminated, she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 23 January 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
7. By a Notice of Decision dated 22 March 2017 the Director of Immigration (“the 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 (“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 all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of the applicant being harmed or killed by her creditors upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that they had any real intention to seriously harm or kill her, that her problem with her husband’s creditors were private personal monetary dispute without 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 156 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 work experience to move to other part of Bangladesh away from her home district in large cities such as Bogra where it would be difficult if not impossible for her creditors to locate her.
9. On 3 April 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 27 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 14 December 2017 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 being threatened by her husband’s creditors but found such threats and ill-treatments do not amount to persecution for convention reason, or that she would face any risk under any of the applicable grounds, and that such risk was confined to her home district that she as an able-bodied adult with work experience can relocate to elsewhere in Bangladesh such as Dhaka, Chittagong or Khulna without any hardship.
11. On 5 February 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:
(1) that the Director and the adjudicator reached the wrong decision in assessing her non-refoulement claim;
(2) that their decisions were not reasonable or fair as required by the Wednesbury test;
(3) that they failed to take into consideration that right to life must be protected from extra-judicial killings which she may face if deported to Bangladesh; and
(4) that the adjudicator failed to give her sufficient time and opportunity to arrange relevant evidence in support of her non-refoulement claim as well as her appeal.
12. 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 applied to her case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to her claim, or how did the adjudicator fail to give her sufficient or opportunity to produce her evidence in support of her claim or her appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness in their decisions being clearly and properly shown by the applicant, I do not see how any of these complaints is reasonably arguable for her intended challenge.
13. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537 .
14. In the applicant’s case, as it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
15. 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.
16. 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.
Dated the 28th day of June 2019.
(NG Ka-wing)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 28 June 2019
Begum Roksana
Applicant’s ref. no.:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 June 2019
Adjudicator of the Non-refoulement Claims Petition office st Putative Respondent’s ref. no.:
Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1