NUPUR MST AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1517/2023

[2024] HKCFI 2111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1517 OF 2023

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 the 1st and 2nd Applicants (“the Applicants”) in open court;

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 41-year-old national of Bangladesh who arrived in Hong Kong on 26 October 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 October 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 July 2014, she did not depart and instead overstayed, and was arrested by police more than 1 year later on 22 September 2015. After she was referred to the Immigration Department for investigation, she 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 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.  A1 was born and raised as a Muslim in Village Muslim Nagar, District Dhaka, Bangladesh. After leaving school she married her husband and moved to reside with him in Mazigati Shippuur, Majhigati, Gopalganj where she followed him to support BNP regularly attended their local meetings and activities, during which she and her husband as well as her fellow BNP supporters were frequently intimidated and attacked by the local AL supporters, and after receiving news in August 2013 that her husband had been killed by those AL supporters, A1 became fearful for her own life and departed Bangladesh in October 2013 for Hong Kong to work as a foreign domestic helper, and after her employment contract was terminated, she was afraid to return to Bangladesh and so she overstayed in Hong Kong and raised her non-refoulement claim for protection which was subsequently rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), while her legal challenges to the Courts by judicial review and appeal had also been dismissed.

3.  While released on recognizance pending the determination of her claim and the legal process, A1 met and formed a relationship with a fellow Bangladeshi man in Hong Kong, and on 18 July 2019 she gave birth to their son, the 2^nd Applicant (“A2”), and in June 2020 she raised a subsequent non-refoulement claim to the Immigration Department for herself and her son on the basis that if they returned to Bangladesh they would be harmed or killed by her family and/or the Muslim community respectively for giving birth out of wedlock and for being an illegitimate child contrary to the Islamic teachings, in addition to fear of being harmed or killed by the AL supporters as before in her previous claim, and for which A1 completed a Non-refoulement Claim Form (“NCF”) on 11 March 2021 and jointly attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 25 June 2021 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of either A1 or A2 being harmed or killed by A1’s family or the Muslim society or the AL people upon their return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from any of them, that there is no evidence based on even A1’s own case that her family is aware of her having given birth to A2 out of wedlock given her own admission of having no of further contact with her parents or family in Bangladesh since 2018 that they would not have known of her birth of A2 to form any intention to harm or kill them other than their own speculations, while A1’s claim of fear of being harmed by those AL supporters had already been rejected by the Board as not credible or reliable in her previous claim never mind the absence of any evidence of any threats against A2, and that in any event in the absence of any official involvement that state or police protection would be available to both Applicants if resorted to, and that even if her Bangladeshi boyfriend, with whom she admitted to have a harmonious relationship, were not to marry her or to return with her and A2 to Bangladesh that reliable and objective Country of Origin Information (“COI”) show that single or unwed mother and illegitimate children are protected by law in Bangladesh with various government department and NGOs to offer support and assistance to them within the country, and that if necessary that reasonable internal relocation alternatives are also available in Bangladesh with a large population of 162 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Chittagong where it would be difficult if not impossible for anyone to locate them.

6.  On 5 July 2021 the Applicants lodged their appeals to the Board against the Director’s decision, and for which they attended an oral hearing on 26 September 2022 before the Board during which A1 gave evidence for herself and A2 and answered questions raised of their claims by the Adjudicator for the Board. On 10 August 2023 their appeals were dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies discrepancies and contradictions in A1’s evidence that it had significant concerns over her credibility and rejected her claims of having been involved in politics or being a supporter of BNP or was ever targeted by the AL people prior to her departure of Bangladesh and as a consequence that she or her son would face any risk from the AL people or from her family in Bangladesh over her giving birth to A2 out of wedlock in Hong Kong as being just her bare assertion or speculation, and given the fact that A2 is also a Bangladesh national and a Muslim as his parents that based on relevant COI that there are laws in Bangladesh to protect its citizens from discriminations and persecution as well as with government departments and NGOs to provide support and assistance to unwed or single mother and illegitimate children that the Board is not satisfied that they as such will face any real risk of serious harm upon their return to Bangladesh and concluded that their claims for non-refoulement protection failed on all applicable grounds.

8.  On 28 August 2023 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just repeated their claims as before but without putting forth any proper ground for their intended challenge, nor was she able to do so at the hearing of their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

9.  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.

10.  In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in paragraphs 96 – 130 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

11.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from A1’s family or the local AL people in their claims even if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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 Applicants’ claim.

13.  I am of course mindful of the fact that A2 is a minor at the present age of 5 only and was without legal representation in his appeal before the Board, or in his present application before the Court as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and hence it would be necessary to separately consider and examine whether his non-refoulement claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support his potential minor-specific non-refoulement bases but which might not have been advanced to the Board in his appeal or to the Court in his present leave application of any error of law or procedural unfairness which might have been committed by the Board due to lack of legal representation in either process, an approach held to be necessary by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of any adult may do so in the case of a child.

14.  In the present case, it is clear from the decision in paragraphs 124 – 129 that the Board did separately and specifically consider A2’s non-refoulement claim in addition to those based on the same set of primary facts raised by his mother A1 but also those specific to A2 as a child relevant to his age, nationality, ethnic and religion upon his return with his mother to Bangladesh, and upon close scrutiny of the Board’s decision I do not find any potential minor-specific non-refoulement basis which might not have been raised or advanced to the Board in his appeal due to lack of legal representation, or any error of law in the Board’s decision in its assessment and determination of his non-refoulement claim. In the circumstances, I shall treat the absence of legal representation for A2 in these proceedings as a mere irregularity, as it would not serve any purpose for him to be so represented given the lack of merits in his intended judicial review (see Zaraydah v Torture Claims Appeal Board [2020] HKCA 442, and as discussed in [57] of Fabio Arlyn Timogan.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their 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