SUMI TAHERA AKHTER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2329/2018

[2022] HKCFI 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2329 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 13 June 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 August 2016, she did not depart and instead overstayed in Hong Kong since 10 September 2016, and was arrested by police on 10 May 2017. 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 her abusive husband for leaving him and their marriage due to his domestic violence towards her. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Barakatali, District Bagerhat, Bangladesh. After leaving school she married her husband and moved to live in his home in Village Saheber Meth in the same District Bagerhat, and raised a family with a son.

3.  However, soon after marriage the Applicant found her husband very abusive towards her by frequently slapping, pushing, and punching her at will, and also refused to allow her to return to her home village to visit her parents, and when one of her nephews tried to persuade her husband to allow her to visit her parents, her husband lost his temper with her nephew and hit him too, and later after a brother of her husband had died in a traffic accident, her husband made a false charge against her nephew of causing the accident, and when the Applicant refused to heed his warning by giving evidence against her nephew in court, her husband became furious and made death threats against her.

4.  Fearing for her life, the Applicant therefore fled to Dubai in 2013 where she worked as a domestic helper before coming to Hong Kong in 2016 to work as a foreign domestic helper, but when her employment contract was prematurely terminated, she did not depart and instead overstayed in Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 23 February 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention of her husband to seriously harm or kill her, that it was in any event a private domestic dispute between 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 157 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 part of Bangladesh away from her home district in large cities such as Chittagong where it would be difficult if not impossible for her husband to locate her.

7.  On 8 March 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 7 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that it considered her not a witness of truth, and that she had not told the truth in relation to critical aspects of her claim that it did not accept that she had been assaulted by her husband as claimed, or that that she fled her marital home and then Bangladesh in fear of her husband, that her credibility had been further undermined by her failure to raise such claim upon her arrival in Hong Kong until much later, and concluded that the Applicant would not be at risk of any harm upon her return to Bangladesh or that there is any risk that she would face any of the proscribed forms of harm should she return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 24 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forth the following grounds for her intended challenge:

(1) That the Board erred in failing to maintain high standard of fairness by not holding any oral hearing for the appeal to allow the Applicant an opportunity to put forward her case;

(2) That the Board failed to apply the minimum standards of procedural fairness required in its decision making process; and

(3) That the Board failed to take into account of the fact that the Applicant was not legally represented and that she has insufficient legal knowledge which could have jeopardized her representation in her appeal process.  

10.  The Applicant’s complaint under Ground (1) that the Board failed to hold any oral hearing for her appeal is wholly without any factual basis as noted above and as clearly recorded in the decision that an oral hearing was indeed held on 7 June 2018 during which the Applicant did testify and make further representations of her case as well as answering numerous questions raised of her claim by the Adjudicator with the assistance of an interpreter (see [35] – [83] of the decision). In the premises this complaint simply has no basis and is not arguable at all for her intended challenge.

11.  As for her complain under Ground (2) that the Board failed to apply high standards of fairness in assessing her claim or her appeal, the Applicant did not provide any details or particulars or elaboration as to how the Board did not, and as such I do not find this ground reasonably arguable either.

12.  As for her complain under Ground (3) that a lack of legal representation in her appeal and hence her representation before the Board had been jeopardized, she failed to explain how it had been, nor did she attend the hearing of her application to do so, and as she already had the benefit of legal representation from DLS in presenting her case to the Director, and was able to repeat the same to the Board in her appeal hearing and to answer questions put to her by the Adjudicator without difficulty, and given the plain facts of her claim based on her own case as presented to both the Director and the Board had remained essentially the same, and in the absence of any evidence to suggest any misunderstanding of her claim by the Board, I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board, nor do I find this complaint of hers reasonably arguable either.       

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 Board rejected his claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 37 - 83 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

15.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.     

16.  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.

17.  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