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HCAL 3874/2019
[2025] HKCFI 1156
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3874 OF 2019
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BETWEEN
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Kamrunnahar |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 18 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003874_2019_files/the_Board's_Decision.pdf
2. The Board decided that the applicant was unable to make out her non-refoulement claim under the Unified Screening Mechanism (“the USM”) on all the applicable grounds. Hence, the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 February 2019 was refused and the said decision was confirmed.
Amendments
3. In Form 86, the applicant wrongly named the Immigration Department as the putative respondent and the Torture Claims Appeal Board as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
The applicant’s case
4. The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-
(1) The applicant is a female national of Bangladesh born in Kalamajhi, Madhupur, Tangail, Bangladesh on 13 May 1988. She received 8 years of formal education and is married with two children.
(2) The applicant came to Hong Kong to work as a domestic helper in December 2014. Her employment contract was terminated prematurely on 23 March 2015. She then overstayed and was arrested by the police on 9 April 2015. She was released on recognizance on 16 May 2015.
(3) The applicant claimed that her life would be in danger from her husband, who would cause her serious harm or even kill her on her return to Bangladesh. The husband was a politician aligned with the Awami League, the ruling party of Bangladesh.
(4) The applicant made a written submission for her non-refoulement claim to the Director on 11 April 2015. The Director rejected her claim on 21 February 2019, and she appealed to the Board on 6 March 2019.
Grounds for judicial review
5. The applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015 dated 22.12.2016).
6. The applicant did not advance any specific ground for her intended judicial review in Form 86 nor in her supporting affirmation dated 30 December 2019. She merely stated in her affirmation that her problems were not yet solved and she asked to stay in Hong Kong until her problems were finished to save her life, as her home country was still dangerous for her life.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 25 February 2025.
8. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
9. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Discussion
10. 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 [2018] HKCA 524).
11. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.
12. The applicant did not advance any specific ground for the intended judicial review, but seems to suggest that her life is still in danger if she were to be deported back to Bangladesh. She did not mention that the Board had done anything wrong. For the sake of completeness, the court will still examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.
13. In assessing the appeal by the applicant, the Board held a hearing on 5 July 2019. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.
14. The Board found that there was no objective evidence to support the applicant’s material allegations. Having accepted that she and her husband came from humble circumstances, the Board found that desperation for money might have been the cause of strife between the applicant and her husband.
15. The applicant came to Hong Kong to try to earn a better living, but not for fear for her life because of her husband, who was just a farm labourer working on someone else’s land. The husband would not be an influential political leader as alleged even in the village.
16. As an able-bodied woman in her thirties who had received 8 years of formal education and had work experience as a foreign domestic helper, the applicant could live elsewhere in Bangladesh without undue hardship, even if she had a domestic violence issue.
17. Having considered the circumstances of the applicant, the Board suggested that the applicant could settle in Rajshahi, a city of around 450,000 people, about 200 kilometers to the west of her village, which is sufficiently far from her village for safety and close enough for family contact.
18. The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-
(a) risk of torture under Part VIIC of the Immigration Ordinance;
(b) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;
(c) risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and
(d) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
19. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment could be avoided by relocation, and there was no real risk of right to life, risk of torture or risk of persecution. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.
20. Moreover, in assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI”) for the applicant’s country from different sources.
21. The Board referred to The United Kingdom Home Office report of January 2018 in its assessment of the unlikelihood that the applicant would be pursued if she relocates to other areas within her country. While acknowledging that the situation in Bangladesh could not be said to be perfect, reliable COI indicates that state protection is available and extends to village level and includes mandatory female representation in village court panels.
22. The Board found that the applicant’s fear of domestic violence is localised as her husband is, at the most, a farmer with few assets and little or no influence. The applicant can safely relocate to other places within Bangladesh without undue hardship.
23. In the premises, there is no merits at all for the applicant to claim that her life would be in danger if she were to return to her own country.
24. Having rigorously examined the Board’s Decision 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 applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.
25. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of March 2025
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( Alfred Chan )
for Registrar, High Court
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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 his 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/Handed to the applicant/the applicant’s solicitors
on: 26/3/2025
Applicant’s ref. no: Nil
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Sent/Handed 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: 26/3/2025
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15652/19/3/17/B1998
Director of Immigration
Putative interested party’s ref. no.: QA T/C 5206/18 (formerly RBCZ 152/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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