KAKOLE v. TORTURE CLAIMS APPEAL BOARD

HCAL 780/2019

[2021] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 780 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 the Applicant in open court;

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Bangladesh who arrived in Hong Kong on 23 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her contract was prematurely terminated on 25 August 2014, she did not depart and instead overstayed and was arrested by the police on 6 October 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 the local supporters of the rival political party Awami League (“AL”).  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in New Court Para, Jhenaidan, Bangladesh.  After leaving school she remained living with her parents and siblings in her home district where her family supported the political party Jamaat-e-Islamic Party (“JEI”) with her father being a local party leader and her elder brother also a member of its student wing, and to follow her family’s tradition the Applicant also supported JEI but without becoming a party member.

3.  In 2014 she learnt that her brother had suffered injury in a fight with some local AL supporters and was admitted into hospital for medical treatment.  As a result her father moved the family away to avoid any further attacks by the local AL supporters. 

4.  Fearing for her own safety, the Applicant then made arrangements to come to Hong Kong to work as a foreign domestic helper, which she did on 23 April 2014 when she departed Bangladesh, but when her employment was terminated in August 2014, she did not depart and instead overstayed in Hong Kong, and upon her arrest by the police and was referred to the Immigration Department, she then raised her claim for non-refoulement protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 March 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 28 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

6.  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 any past ill-treatment from them other than her own groundless speculation, that she was merely an ordinary JEI supporter without any official post in the party for the AL people to have any adverse interest in her at all, 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 166 million people spread across a vast territory of more than 143,000 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 the AL people to locate her.

7.  On 8 June 2015 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 18 August 2016 before the Board during which she however only confirmed her case as contained in the hearing bundle and declined to given any further evidence or to answer any questions raised of her claim. On 20 April 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no evidence of any threats made against the Applicant other than her own speculation, and that in the absence of any evidence 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 that her claim for non-refoulement protection failed on all applicable grounds.  

9.  Meanwhile on 19 May 2017 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 response from her, the Director by a Notice of Further Decision dated 12 June 2017 rejected her claim under BOR 2 Risk upon finding that she had failed to establish any personal or real risk of her absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon her return to Bangladesh.

10.  The Applicant again lodged an appeal to the Board against this decision of the Director, but for which the Board did not find it necessary on this occasion to conduct any oral hearing, and proceeded to deal with the appeal in the Applicant’s absence and on paper, and on 15 March 2019 it again dismissed her appeal and confirmed the further decision of the Director.

11.  In this decision the Board found in the absence of any additional facts from the Applicant which may be relevant to her claim under BOR 2 Risk of which she conceded as much in her notice of appeal, and with no substance at all in her other proposed grounds which the Board found wholly irrelevant to her case that it concluded that her claim also failed under BOR 2 Risk.     

12.  On 20 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, and put forward 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 had acted in a procedural 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 are 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 had significantly relied on the source of news which is not officially recognized or was simply hearsay or outdated with the lack of credible source of information resulted in the Board making groundless speculations that it is safe for her to return to her home country; and

(6) that the Board failed to give the Applicant an opportunity to put forward her submissions in an oral hearing nor was she invited to submit written submissions for her appeal.  

13.  Before the court was in a position to deal with her leave application, the Applicant on 6 July 2020 filed an affirmation to request to withdraw her application as she wanted to go back to her home country, and on 30 July 2020 the court acceded to her request and allowed her application to be withdrawn.

14.  However, 2 months later on 17 September 2020 the Applicant filed a summons to request to “re-open” her leave application because she “still faces dangerous threats” in her home country.

15.  Given the fact that the merits of her leave application had never been properly dealt with when her application was withdrawn, and to save time and expenses, I allowed her to proceed with her leave application and proposed to consider the merits thereof by focusing on her proposed grounds which she confirmed at the hearing that she still relies on the same grounds as stated above for her application.     

16.  However, most of them appear to me to have been copied from some pro forma statement commonly used in this type of applications but which bear no relevance at all to the Applicant’s claim or are just some broad and vague assertions of hers containing some 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 in what way was the decision unreasonable or irrational in the public law sense, or how did the Adjudicator act in a procedural unfair manner or fetter his discretion unlawfully in the decision, or what COI was unofficially recognized or was hearsay or outdated. 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.

17.  As for her complaint of not being given any oral hearing for her claim under BOR 2 Risk, as laid down by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 of the principles as to the requirement of oral hearing, there is no absolute entitlement to a BOR 2 oral hearing which is ultimately a question of fairness, and even now in her present application before me, the Applicant has not explained or identified what additional facts or grounds that she would have put before the Board at an oral hearing that could advance her BOR 2 claim.

18.  Furthermore, on the facts of her case and in the light of the scope and threshold of a BOR 2 claim, there is in my view simply no room for engaging the BOR 2 ground, and no useful purpose, as found by the Board, would be served by another oral hearing for the Applicant’s appeal. In the circumstances I do not find the Board’s decision not to hold an oral hearing for her BOR 2 claim amounts to any procedural unfairness or breach of the high standard of fairness to the Applicant.  As such I do not find this ground reasonably arguable for her intended challenge either.   

19.  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.  

20.  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.     

21.  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.

22.  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