ARA KISMOT v. TORTURE CLAIMS APPEAL BOARD

HCAL 3501/2019

[2025] HKCFI 2330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3501 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 / 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 45-year-old national of Bangladesh who last arrived in Hong Kong on 6 March 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 6 March 2018 as extended or within 14 days of its early termination, but when her employment was prematurely terminated on 14 May 2017, she did not depart and instead overstayed, and was arrested by police on 25 July 2017 for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 6 weeks, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband who always demanded money from her and/or her former colleague over their political disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dinajpur, Bangladesh. After leaving college with a master degree she worked as a field worker for a national NGO known as Bangladesh Rural Advancement Committee (“BRAC”) in her home district, married her husband, and supported the political party Bangladesh Nationalist Party (“BNP”).

3.  However, shortly after their marriage the Applicant soon found her husband to be a womanizer and instead of seeking work he frequently demanded money from her, and when she refused or was unable to do so, he would beat her severely.

4.  While at work she also faced hostility from her branch manager due to their different political differences as he supported rival political party Awami League (“AL”), and had made threats against her, and in 2013 the manager abused his authority by moving the Applicant to another branch in some remote area, yet the Applicant had been told by her other colleagues that the branch manager had continued to threaten that he would kill the Applicant if ever he saw her again.

5.  To avoid further threats from her husband and her branch manager, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did in November 2014, but after her last employment was prematurely terminated on 14 May 2017, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her arrest by the police for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 6 weeks, during which she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 16 November 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”).

7.  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 or former colleague upon her return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her other than angry words and empty threats and that it is not accepted that they would still have any adverse interest in her after all these years since she left the country, that in any event these were private and personal disputes between them only 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 areas of the country away from her home district in large cities such as Dhaka where it would be difficult if not impossible for anyone to locate her.

8.  On 29 November 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 19 September 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 November 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claimed fear of harm from her husband or former colleague that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until only after her subsequent arrest, that even if her account of events prior to her leaving her country were true that there was no reliable evidence of any real intention of either of her husband or her former colleague to seriously harm or kill her other than their angry words and empty threats or that they would still have any adverse interest in her after all these years, and that in any event these were private and personal disputes between them only 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 alternatives 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.

10.  On 26 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in 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 his 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.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  Moreover, the Applicant recently on 22 April 2025 in writing requested to “cancel” her application as she now wants to return to her home country but without any explanation as to what may have happened to her claimed risks in Bangladesh.

15.  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, I therefore refuse to grant leave and accordingly dismiss her 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