BEGUM SHAHANAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 3011/2019

[2021] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3011 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 38-year-old national of Bangladesh who last arrived in Hong Kong on 25 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 November 2015 or within 14 days of its early termination, but when her contract was prematurely terminated on 11 May 2014 she did not depart and instead overstayed until 29 October 2014 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 abusive husband over some family disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kismat Fultola, Batiaghata, Khulna, Bangladesh. After leaving school she married her husband who worked in the sawmill and ran a grocery store in her home village, and raised a family of two children in her husband’s home in the same village.

3.  During the marriage her husband however became abusive to her by frequently slapping and hitting her, and in 2013 their relationship deteriorated further over some monetary disputes that the Applicant was eventually driven out of her husband’s home, and so as to avoid further threats from him, the Applicant departed Bangladesh on 10 December 2013 for Hong Kong to work as a foreign domestic helper, but after her employment contract was terminated on 11 May 2014, she did not depart and instead 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 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 10 September 2018 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 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 Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return Bangladesh due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention on the part of her husband to harm or kill her, that in any event it was some private domestic disputes 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 158 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 Bangladesh away from her home district in large cities such as Chittagong or Dhaka where it would be difficult if not impossible for her husband to locate her.

6.  On 24 September 2018 the Applicant 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 16 July 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 10 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board accepted the Applicant’s claim of being abused and threatened by her husband, but found in the absence of any official involvement that state/police protection would be available to her upon her return to Bangladesh as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 14 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth 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 requirement;

(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 and 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 was simply hearsay or outdated which resulted in groundless speculations that it is safe for her to return to her country of origin; and

(6)  That the hearing bundle was given to her just a few days before her appeal hearing with the majority of the documents in English thereby given her insufficient time to prepare for her appeal.  

9.  Most of these grounds however appear to me just something copied from some pro forma statements commonly used in this type of applications but are wholly irrelevant to the Applicant’s case, or are just some 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 Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in procedurally unfair manner, or in what way was the decision unreasonable or irrational in the public law sense, or what source of news relied on by the Board were outdated or hearsay or not officially recognized.  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.

10.  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.

11.  The only other complaint which the Applicant appeared to have made with an 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.

12.  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 interviews 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 she never raised any issue 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. 

13.  The fact is that 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 simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.  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.  Furthermore, the Applicant on 9 September 2020 filed an affirmation to request to withdraw her leave application because all her “problems back home are finished” and that she wants to go home as soon as possible.

16.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that the basis of her claim no longer exists, I accede to her request and 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