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HCAL 3163/2019
[2025] HKCFI 1093
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3163 of 2019
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Khatun Mst Shapla |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 25 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 October 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 March 2019 (the “Notice”), refusing her application for non-refoulement protection.
Background
2. The Applicant is a Bangladeshi national. She first came to work in Hong Kong to work as a foreign domestic helper in December 2013. She overstayed since 25 July 2017 after her employment contract was prematurely terminated. She surrendered to the Immigration Department on 11 December 2017. She made a claim for non-refoulement protection on 4 April 2018. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to Bangladesh, she will be harmed or killed by her husband because of domestic violence.
4. The Applicant, now aged 39, was born up in Chandipur, Sherpur, Bogra, Bangladesh. She had received about eight years’ formal education and had worked in Hong Kong as a foreign domestic helper from 2013 to 2017.
5. She married her husband in 2005. Her husband was a member of the ruling Awami League political party (“AL”). Their relation was harmonious initially until she gave birth to her daughter on 18 November 2007. Her husband was not happy because she did not give birth to a boy. He began to neglect the family. Then, the Applicant moved to stay with her parents.
6. After a reconciliation meeting, the Applicant moved back to live with her husband. Soon, her husband started to beat her up with wooden sticks or tree branches. He beat her about once a week, especially when she asked him not to stay out so frequently or when she asked for housekeeping money.
7. In 2009, the Applicant found out that her husband had become a drug addict. Whenever she tried to persuade him to give up his addiction, he became furious and burnt her private part and breast with cigarette.
8. In 2010, her husband married his second wife who was a supporter of the AL. Since then her relations with him deteriorated further. The Applicant moved to live with her parents again. She gave birth to a baby boy in December 2011. In March 2012, her husband visited her to see their son. They argued over politics and her husband burnt her arm with a hot cooking utensil.
9. In late 2012, the Applicant and her husband reconciled again after a reconciliation meeting. Her husband behaved for a month or two only and then began pressurizing the Applicant for money towards the end of the year. The Applicant borrowed 100,000 taka from a moneylender to give to her husband.
10. In early 2013, when the Applicant told her husband that interest payment was due, he beat her up and told her to pay the interest herself. Then her husband and his second wife forced her to drink some unknown liquid. She vomited and fell unconscious. When she regained consciousness, she found herself in hospital. Her doctor told her that she had been poisoned. Her husband’s sister took away her children and threatened her not to report to the police, otherwise she would not be able to see her children again.
11. After her discharge from the hospital, the Applicant went to stay with her parents. Her brother helped her to get back her children from her husband. Then, the Applicant came to work in Hong Kong in December 2013.
12. The Applicant returned to her parents’ home in 2016 for holiday. She repaid all the loan and interest to the moneylender. One day, her husband came and scolded her for not giving him any money and beat her with a tree branch. Then, the Applicant returned to Hong Kong for work and never contacted her husband thereafter. Subsequently, her employment contract was prematurely terminated. She never returned to Bangladesh since.
The finding of the Board
13. The Board assessed the Applicant’s claim on the basis of the case as she asserted. It found her case is purely a case of domestic violence in which the husband kept physically abusing the Applicant for various reasons, including for not giving birth to a son, for money and for marrying a second wife, etc. The Applicant never suffered serious injuries. Most of the time, she had bruises on her body and she recovered in a short time. The two most serious incidents during all these years were that on one occasion her husband injured her head with a brick and on another occasion he and the second wife attempted to poison her.
14. The Applicant did not report the incident to the police because she believed the police would not help unless she paid a bribe. The Board found support on the country of origin information (“COI”) for the Applicant’s belief and that corruption and abuse of power have been and continue to be major problems affecting the police. But there are other COI which suggest that the government has instituted reforms and taken steps to improve the performance of the police. As the Applicant had never sought assistance from any higher authorities, the Board found it was only her speculation that the police would not assist her. It came to the conclusion that the Applicant had failed to establish that there are substantial grounds for believing that she would be liable to be subjected to torture if she is refouled. Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the decision of the Director in his Notice of Decision.
Legal principles applicable to judicial review
15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
16. The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation. At the hearing, after the applicable law relating to judicial review had been explained to her, the Applicant confirmed she had no complaints about errors of law, procedural unfairness and irrationality in the Decision. She said she had not been unfairly treated in the prosecuting her claim.
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found her case is one of domestic violence in which she had been repeatedly abused by her husband. The injuries she suffered was not serious and the harm which she claimed to be at risk of does not fall within any of the proscribed harm. Hence, the Board found she is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, the leave application is refused.
Dated the 18th day of March 2025
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( Seline Sze ) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 18/03/2025
Khatun Mst Shapla
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15760/19/4/18/B2012
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 5073/18 (formerly RBCZ 10525/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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