AFROSE ASMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1003/2020

[2024] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1003 OF 2020

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 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 arrived in Hong Kong on 22 September 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 September 2017 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 5 February 2017, she did not depart and instead overstayed, and on 23 March 2017 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her brother-in-law over their land dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Golam Moktair Shorok, Khulna Sadar, Sonadanga, Khulna, Bangladesh. After leaving school she married her husband and raised a family with 2 children in her husband’s home district in Bagerhat where he together with his brother inherited some land from their father, while he also jointly owned a property with the Applicant.

3.  During the marriage she learnt that there was a dispute between her husband and his brother over how to utilize their inherited land as her husband wanted to keep the land while his brother wanted to sell it, and which thus led to frequent quarrels between them.

4.  One day in late 2012 she was told that her husband had met a car accident and later died from his injuries, of which the Applicant suspected that it was orchestrated by her brother-in-law to eliminate her husband so that the land could be sold, but when she sought assistance from the local police who however refused to investigate due to lack of evidence in what they also regarded as a private dispute within their family.

5.  After disposing of the land her brother-in-law then took the title deeds of the other property jointly owned by the Applicant and her husband, and when she demanded for their return, he threatened to kill her if she persisted with her demand.

6.  One day in late 2013 the Applicant was abducted by men sent by her brother-in-law who took her to an empty house in Mangala City where they threatened to rape her and then sell her into prostitution unless she gave up on the property.

7.  Eventually the Applicant managed to make her escape and fled to Dhaka to hide in a friend’s place, and as she was afraid of being located by her brother-in-law, she decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 22 September 2015, but when her employment was prematurely terminated on 5 February 2017, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong and then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 27 August 2018 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 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted her bare assertions of land dispute with her brother-in-law without any reliable or documentary evidence or proof or of her claimed fear of harm from him over such dispute that caused her to overstay in Hong Kong for non-refoulement protection, that there is no evidence of any real intention of her brother-in-law to seriously harm or kill her as it would not enable him to obtain her land, that in any event it was a private land dispute between the 2 of 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 156 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 areas of the country away from her home district in large cities such as Dhaka where it would be difficult if not impossible for her brother-in-law to locate her.

10.  On 6 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 9 March 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 6 May 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her brother-in-law over any land dispute that caused her to overstay in Hong Kong to seek non-refoulement protection, that there was no reliable evidence of any such dispute or of any real intention of her brother-in-law to therefore harm or kill her, and that in any event even if such risk were real that it arose from a private land dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 25 May 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. 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 of the Board’s decision.

13.  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.

14.  In the Applicant’s case, the fact is that it has also been established by the Director in his decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  Moreover, the Applicant recently on 19 February 2024 in writing requested to withdraw her application as it is now safe for her to return to her home country.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing be vacated.

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