ALAYA AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 865/2017

[2019] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2017

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 the Applicants being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The 1^st applicant (“A1”) is a 34-year-old national of Bangladesh who arrived in Hong Kong on 12 November 2013 with permission to remain for employment as a foreign domestic helper until the expiration of her employment contract on 12 November 2015 or within two weeks of its early termination.  When her contract was prematurely terminated on 25 November 2013, she however did not depart and instead overstayed until she was arrested by police on 16 September 2014.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain Awami League (“AL”) people for refusing to join their political party and by her creditors/guarantors for failing to repay her loan.  Upon giving birth to her daughter, the 2^nd applicant (“A2”) on 13 October 2015 in Hong Kong, A1 also lodged a non-refoulement claim for A2 on the same basis.  They have been released on recognizance pending the determination of their claim.

2.  A1 was born in Village Sarif Sundar, District Rangpur, Bangladesh.  Her parents passed away when she was small and she was taken by her neighbours to Dhaka where she received seven years of education before working in the garment factory.

3.  In 2003 she started to support the Bangladesh Nationalist Party (“BNP”) regularly attending their meetings and distributing the party leaflets, and in 2005 she changed her job to work as a beautician in Mirpur in Dhaka City to earn her living.

4.  One day in 2013 she was approached by some AL members in Mirpur to quit BNP and to join their party, and when she refused, they were unhappy but did not say anything else. Sometime thereafter in one evening A1 was abducted by several AL members to a quiet place where she was raped by two of them, and before she was released she was told that it was her punishment for refusing to join AL and was threatened not to tell anyone after the rape otherwise she would be killed.  As a result A1 did not report the rape to the police.

5.  About a month after the rape incident, A1 ran into some of the same AL members who again harassed and threatened her.  As she felt it was no longer safe for her to remain in Bangladesh, she decided to apply to work as a foreign domestic helper in Hong Kong, and borrowed a loan of 140,000 Taka from a local bank with two friends as guarantors to pay her employment agency for the job, for which she planned to repay by monthly instalments from her future salaries.

6.  After receiving training for several months she departed Bangladesh on 12 November 2013 for her employment in Hong Kong, but when her contract was terminated shortly thereafter and hence she was never able to make any repayment of her loan to the bank who then turned to her guarantors for payment, and as a result her guarantors have been demanding on the phone for her to repay them or else they would harm or kill her.

7.  During her stay in Hong Kong she met a man also from Bangladesh with whom she has since formed a relationship before her arrest by the police, and after lodging her non-refoulement claim with the Immigration Department and her subsequent release on recognizance, she subsequently married this man and gave birth to A2 on 13 October 2015, for whom she later also lodged a non-refoulement claim on the same basis, and for which they each completed a Non-refoulement Form respectively on 12 March 2015 and 7 March 2016 but requested that their claim be jointly considered together, and subsequently attended screening interviews together before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 25 November 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim 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 (“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”).

9.  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 would be any real risk of them being harmed or killed by those AL people or A1’s creditors/guarantors upon their return to Bangladesh, as it is unlikely that those AL people would still have any adverse interest in A1 after all these years and in any event would not know where to find her in Bangladesh, while her problem with her creditors/guarantors was a personal money dispute that in the absence of any official involvement that state or police protection would be available to the applicants 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 A1 as an able-bodied adult with work experience to move with A2 to other area away from her home district such as Dhaka or Chittagong where there is no reason to believe that those AL people or her creditors/guarantors would or could have the desire or power or resources to locate them.

10.  On 6 December 2016 the applicants lodged their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which A1 attended an oral hearing on 26 June 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 12 October 2017 the appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the evidence of A1 as to her alleged bank loan vague and inherently implausible and therefore rejected this aspect of her claim, but otherwise accepted that she is probably a witness of truth as to the rest of her claim and that the account given by her in support of such claim is plausible, but also found her to be a low level political activist in her local area of Mirpur and had ceased all such activities after the attack in 2013, that given the passage of time and the apparent lack of interest in her from those AL people who were also low-level activists themselves that the risk to her from non-state actors of harm in the form of AL activists is far-fetched and falls below that which could be categorized as a real risk upon her return to Bangladesh, that even if she would still be targeted due to her previous political activity that such risk would only be confined to her local area with no evidence whatsoever to suggest that those AL people who had targeted her have any influence outside the local area or are sufficiently interested in her to pursue her after all these years, and as she is now married and that A2 is not illegitimate and hence there is no basis for any risk of discrimination against either of them in Bangladesh, and that in the circumstances it would not be unreasonable or unduly harsh for A1 as an able-bodied adult with work experience to relocate with A2 internally to other part of Bangladesh, and concluded that they do not face a real risk of any form of serious harm either because that risk is so unlikely to materialize or because they could avoid such risk by relocating to a different part of Bangladesh.

12.  On 10 November 2017 the applicants filed their Form 86 for leave to apply for judicial review of both the decisions the Director and the Board, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she merely deposed that:

“ Affirmation for leave to apply for judicial review against the Director of Immigration Decision as well, to reject my non-refoulement claim including risk of torture in my country. Attached Exhibit – 1”

13.  The Exhibit-1 attached to her affirmation is just a copy of the notice from the Board to the applicants of its decision.  As the applicants did not request for an oral hearing for their application, accordingly no hearing was held, and up to now no ground has been put forward by them for their 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, as the proper occasion for an 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 who 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.

15.  The adjudicator having heard A1 in evidence accepted her claim in relation to the risk of harm from the AL people as plausible, but went on to carefully and meticulously set out her findings and reasons in paragraphs 33 – 73 of the Board’s decision in the consideration of her claim in which the adjudicator correctly applied the relevant principles to arrive at the conclusion, and having considered the Board’s decision with rigorous examination, I am unable to find any fault in those findings or reasoning at all.

16.  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 applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having proceeded to consider 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.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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