NAHAR SAMSUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1409/2020

[2025] HKCFI 1195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1409 OF 2020

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 40-year-old national of Bangladesh who arrived in Hong Kong on 8 August 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 August 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 October 2015, she did not depart and instead overstayed, and was arrested by police on 13 December 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her former husband and/or his creditors for divorcing him and/or for failing to give him money to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Korimullar Bagh, Pustogola, Dhaka, Bangladesh. After leaving school she married her husband but soon found him often in debts due to his gambling habits and that his creditors would come to their home to make threats against them, and so her husband demanded that she should go out to work to help him with his debts, which she did by working in various odd jobs in her home village but which were insufficient to satisfy her husband who then vent his anger on her by beating her at will.

3.  To get away from her husband’s abuses the Applicant in 2014 applied to divorce him with the help of her mother, and in order to make her own living she in August 2015 came to Hong Kong to work as a foreign domestic helper, during which she was informed by her mother that her former husband had been looking for her demanding to know why she had divorced him and had threatened to kill her, and so when her employment was terminated in October 2015, she was afraid to return to Bangladesh and therefore 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 14 December 2018 and attended screening interview before the Immigration Department with legal representation.

4.  By a Notice of Decision dated 10 January 2019 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”).

5.  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 former husband and/or his creditors 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 them to seriously harm or kill her other than to press her for money, that in any event it was a private dispute between her and her former husband 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 159 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 Chittagong where it would be difficult if not impossible for anyone to locate her.

6.  On 22 January 2019 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 15 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 July 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former husband and/or his creditors that caused her to overstay in Hong Kong to seek protection, that even if such risk were real that there was no reliable evidence of any real intention of her former husband or his creditor to seriously harm or kill her other than to press her for money, and that in any event it was a private monetary dispute between her and her former husband 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 by anyone that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 7 July 2020 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 her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded the danger and threats to her but without providing any relevant or necessary details or particulars or elaboration as to how it did so. As such, and in the absence of any error of law or irrationality 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 for her intended challenge.

9.  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.

10.  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.

11.  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.

12.  Moreover, the Applicant recently on 13 February 2025 filed an affirmation requesting to “close her case” as she wants to apply for a dependent visa after having married a local resident and formed a family in Hong Kong.

13.  In the premises, and 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, and in view of her latest confirmation of no longer wish to proceed with her application for her stated reason, I accordingly dismiss 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