BEGUM FARHANA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2087/2018

[2020] HKCFI 2057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2087 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Bangladesh who arrived in Hong Kong on 26 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment on 26 August 2015 or within 14 days of its early termination, but when her contract was prematurely terminated on 8 April 2015, she did not depart and instead overstayed and was arrested on 19 September 2017 for using a forged identity card and for possessing a false instrument for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Bangladesh she would be harmed or killed by the local supporters of rival political party Awami League (“AL”) in  her home village.  

2.  The Applicant was born and raised in Village Gobindopur, District Chandpur, Bangladesh.  After leaving school she followed her mother’s footstep to become a supporter of the political party Bangladesh Nationalist Party (“BNP”), and in 2009 assisted her mother to run for election in their local union council against a AL candidate Rokeya from the same village, during which she and her family received many threats and harassments from Rokeya and her AL supporters which eventually caused her mother to drop out of the election to avoid any further threats to her family, and as a result Rokeya won the election.

3.  However, thereafter Rokeya’s supporters continued to harass the Applicant and her family to demand that they quit BNP to join AL, and when they refused, they on one occasion assaulted the Applicant’s brother causing him serious injuries that required hospitalization.    

4.  To avoid further threats from those local AL supporters, the Applicant took shelter at her aunt’s home, and made arrangement to leave Bangladesh by applying to work as a foreign domestic helper in Hong Kong, which she eventually did on 26 August 2013 when she departed Bangladesh for Hong Kong, but after her employment was terminated in 2015 and that she was subsequently convicted and sentenced to prison for using and possessing false documents, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 7 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 30 May 2018 the Director of Immigration (“the 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 Rokeya or her AL supporters 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 reason why the Applicant would be targeted by those local AL supporters and that it is doubtful that they would indeed still have any further adverse interest in her after all these years, that in the absence of 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 140,000 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 Dhaka where it would be difficult if not impossible for Rokeya or her AL supporters to locate her.

7.  On 12 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 14 September 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found in the circumstances of the Applicant’s case of no reason for those local AL people to have targeted her in the first place or to have any adverse interest in her after all these years, that in any event with state/police protection available upon her return to Bangladesh and with reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by those local AL supporters that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 2 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly and were not reasonable or fair in assessing the Applicant’s non-refoulement claim;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for her non-refoulement claim as well as her appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her claim;

(4) that the Director failed to take into account the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians which should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give weight to those evidence in the listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect;

(6) that it was a clear case of unfair attitude shown by the Director which in itself should render his decision void when he failed to recognize the fact that corruption and incompetency of the administration in her country were still very serious problems as reported by various human rights organizations which stated testament to the Applicant’s assertions; and

(7) that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law.  

10.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or how did the adjudicator fail to give her time or opportunity to provide her evidence for her claim or appeal, or why would state acquiescence be relevant to her claim, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of her claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board on in their decisions being clearly and properly identified by the Applicant, I do not find any of them reasonably arguable 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 decision that the risk of harm in her claim 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.  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.

14.  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