RUNA RAHIMA AKTER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1232/2018

[2021] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1232 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Bangladesh who last arrived in Hong Kong on 21 January 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 21 January 2016 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 30 June 2014, she did not depart and instead overstayed in Hong Kong and was arrested by police on 12 August 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim 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”) due to their dispute with her deceased husband. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Ramnagar, District Hobigani, Bangladesh. After leaving school she married her husband and moved to live with him in neighboring Village Abdullahpur where he ran a fruit store.

3.  Her husband was also a supporter of the political party Bangladesh Nationalist Party (“BNP”) and had come into conflicts with certain local AL supporters with whom he also had some monetary issues and after his rejection of their invitation to leave BNP to join their party.

4.  One day in mid-2009 such conflict between her husband and those AL supporters turned violent and as a result her husband was killed, and thereafter the Applicant started to receive threatening calls from those AL people which persisted for the next several years, but one night in June 2013 the kitchen in her home caught fire and when she saw some of those AL supporters were in the vicinity of her home, she suspected that it was they who set fire to her house, and so she fled with her children to take shelter in her neighbour’s place.     

5.  After the last incident the Applicant felt it was no longer safe to remain in Bangladesh, and so in November 2013 she departed for Hong Kong to work as a foreign domestic helper, and after her last employment contract was terminated in June 2014, she overstayed in Hong Kong, and upon her subsequent arrest by police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 March 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 4 August 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account 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 absence of or low intensity and frequency of past ill-treatment from them, that she had no political affiliations with BNP or otherwise that there is no reason for the AL people to have any adverse interest in her especially after all these years, that 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”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Bangladesh away from her home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate her.

8.  On 13 August 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and proceeded to consider the appeal in her absence and on paper. On 30 March 2016 the Board dismissed her appeal and confirmed the Director’s decision.

9.  In its decision the Board did not take any issue with the facts or law of the Applicant’s claim which might require to be resolved in an oral hearing, but found no evidence to support her claim for non-refoulement protection under any of the applicable grounds, and that in any event in the absence of any official involvement  that state/police protection would be available upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by those local AL supporters that her claim for non-refoulement protection failed on all the applicable grounds.    

10.  On 7 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any such additional facts other than a regurgitation of her claim as before that the Director by a Notice of Further Decision dated 4 January 2017 rejected the Applicant’s claim under BOR 2 Risk.

11.  On 15 February 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which she on this occasion did attend an oral hearing on 11 April 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 22 June 2018 her appeal was again dismissed by the Board which also confirmed the further decision of the Director.

12.  In its decision the Board found even on the Applicant’s own case that the right protected by BOR 2 has no relevance to the matters complained by her in her claim, nor did her evidence adduced either in her documents or at the oral hearing show that she will be at risk of harm from capital punishment inflicted by the Bangladesh government or face harm from the government that would put her life at risk as the additional grounds presented were in the main a rehash of facts previously stated in respect of her USM proceedings which had already been dealt with, and that with no evidence that the Bangladesh government and/or other authorities have acquiesced in the alleged ill-treatment of the Applicant and that there was nothing in the material before it to show that she will be at risk of BOR 2 harm if refouled that her claim for non-refoulement protection also failed on the BOR 2 ground.

13.  On 29 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decision and other documents in her hearing bundle used before the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

14.  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.

15.  On the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, as correctly found by the Board, there is simply no room for engaging the BOR 2 ground, and as such I do not find the Applicant’s intended judicial review reasonably arguable or to have any prospect of success.

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their earlier decisions 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 parts 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.     

17.  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.

18.  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