BEGUM TAHURA v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1127/2018

[2019] HKCFI 2663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1127 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Bangladesh who arrived in Hong Kong on4 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 November 2016 or within 14 days of its early termination.  On 11 December 2015 her contract was prematurely terminated but she did not depart and instead overstayed until 12 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 creditor for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Brahmanbaria, Bangladesh.  After leaving school she got married and raised three children.  In 2012 she started to run a garment business, but when her business did not fare well, she had to borrow a loan from a local money-lender to pay off her suppliers, with her loan repayable by monthly instalments with interest.

3.  In 2013 she borrowed a further loan from the money-lender for her mother’s medical expenses, and in order to earn money to repay her loans, she decided to work as a foreign domestic helper in Hong Kong, which she did on 4 November 2014 when she departed for Hong Kong to begin her employment, and from her monthly salary she was able to make her loans instalment payments to her creditor.

4.  However, when her employment was terminated in December 2015, and when she was unable to make any further loan repayments, she was told by her family of her creditor’s threats to kill her upon her return to Bangladesh, and fearing for her life she therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection,for which she completed a Non-refoulement Claim Form on 24 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 13 April 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial risk of her being harmed or killed by her creditor upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them 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 160 million people spread across a vast territory of more than 130,000 squarekilometers 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 Dhaka where it would be difficult if not impossible for her creditor to locate her.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 23 May 2018 before the Board during which she confirmed her evidence already given in the materials in the hearing bundle but declined to give further evidence or to answer any questions put to her by the adjudicator for the Board despite his invitation and advice for her to do so.  On 1 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found many aspects regarding the Applicant’s credibility as to her claim of loans and threats from her creditor which it was unable to assess due to her refusal to give further evidence or to answer questions raised of her claim, and concludedthat with state protection and reasonable internal relocation available within Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 19 June 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 failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case;

 (2) that the Director failed to take account of or give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies and that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection to its citizens under the duty of due diligence;

 (3) that the Director failed to consider or give sufficient weight to the COI evidence that support the Applicant’s aversions that the police in her home country would not be able to protect;

 (4) that the Director referred to the relevant COI that would suit his pre-conceived conclusion thus showing a clear case of unfair attitude which would render his decision void;

 (5) that the Director failed to apply high standards of fairness required by the Wednesbury test which render his decision unreasonable in the scope of public law;

 (6) that the adjudicator failed to make sufficient enquiry before finalizing his determination; and

 (7) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence in support of her claim and her appeal.  

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 tohow they applied to his case or how the Director or the adjudicator had erred in their decision,or what relevancy was state acquiescence to her claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI or to apply high standards of fairness, or how did the adjudicator fail to make sufficient enquiry or to give the Applicant sufficient opportunity to provide evidence to support her claim or appeal when in fact she refused to answer any questions from him or raise any such issue at her appeal hearing.

11.  As none of the other assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairnessin her process before the Director or the Board or in their decisions being clearly and properlyidentified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable for her intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, 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.

13.  In the Applicant’s case, the Board found that the credibility of her claim had been seriously undermined by her refusal to answer his questions raised of her claim, and that the fact that it has been established by the Director in his 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, 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