BEGUM SHAHINUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3060/2019

[2025] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3060 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. However, after the hearing but before the decision is handed down, the applicant applied for withdrawal of her application as her problems have been solved and she wants to return as soon as possible. There is no evidence to show that the application was made other than out of her own volition. This Court will accede to her request. As there is nothing outstanding in the action, her application is dismissed. The following information shows that her application is devoid of merit.

The applicant

3.  The applicant is a national of Bangladesh. On 31 December 2013, she arrived in Hong Kong and was permitted to remain as a domestic helper. When her contract was prematurely terminated, she did not depart and instead overstayed since 22 September 2014. She was arrested on 16 May 2015 for breaking her condition of stay by overstaying. In due course, she lodged her non-refoulement claim.

4.  The applicant’s claim was based on her fear of being harmed or killed by her husband due to domestic violence and threats from her husband’s first wife and her brother.

5.  According to the applicant, she was forced to marry her husband, who was married with 2 children. She was then assaulted by her husband and his first wife. Because of their child born in 2002, she did not fight back. Over a period of more than 10 years, she was tortured by her husband and his first wife by slapping her, beating her with bare hands and pushing her onto the floor, making her unconscious. She had reported the matter to police, which did not make investigation into the matters. In mid‑2013, the applicant asked her husband for a divorce but he refused and instead scolded and threatened the applicant with death. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the level of risk of harm or ill-treatment upon the applicant’s return was low, and no indication that the state was involved in this matter [14‑16]; state protection was available [17-22]; and internal relocation alternatives were available [23-29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 16 July 2019, the Board conducted an oral hearing for her appeal, during which the Board questioned the applicant why she waited for 9 months after the termination of her contract before seeking non-refoulement protection [71].

9.  Having considered the evidence, the Board was not satisfied that the applicant made out any of the applicable grounds [101, 105, 116, 122 & 126]. In any event, the Board found it would not be unreasonable or unduly harsh for the applicant to relocate [91-92]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant filed the Form 86 on 17 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid ground for her application.

11.  In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and deposed in a handwritten note that she would like to seek judicial review on both the Director’s Decision and Board’s Decision. She provided a factual background and repeated her claims. She complained that there was insufficient time for her to prepare her hearing due to her limited skills in English and her hearing bundle was provided earlier. However, these were only bare assertions as no particulars were provided in her complaints.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. When I asked the applicant if she thought the Board was wrong, she said that the Board was fair. In view of her submission before the Court, her complaints under 12 become insignificant.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I dismiss the applicant’s application.