ROY POPY RANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 94/2024

[2024] HKCFI 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 94 OF 2024

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 33-year-old national of Bangladesh who last arrived in Hong Kong on 2 November 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when it was prematurely terminated on 2 February 2018, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 30 November 2020. 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 husband and his followers due to their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kornai, Haji Danesh, Dinajpur, Bangladesh. After leaving school she married her husband who was a keen supporter of the political party Awami League (“AL”) and frequently attended their local meetings and activities with his fellow AL supporters.

3.  In 2012 the Applicant became pregnant but her husband was not happy and wanted her to get an abortion as he did not want the responsibility of raising a child, but which was not agreeable to the Applicant which led to numerous quarrels and conflicts between them.

4.  Eventually her husband demanded large sums of money from the Applicant’s mother as compensation if the Applicant insisted in giving birth of the child, but when the Applicant’s mother was unable to do so, he became furious and threatened to kill the Applicant, and so the Applicant left him to return to live with her mother in the same district.

5.  One night in December 2012, some unknown men came to the Applicant’s home and accused her of insulting the Islam religion and beat her and then burned down her mother’s house, whereupon the Applicant and her family fled to Komolpur to take shelter in a relative’s home.

6.  On another occasion in 2014 the Applicant was abducted by several unknown men who brought her to a deserted place and raped her, and before they released her they warned her not to go to the police or else they would kill her, whereupon the Applicant fled to Rangpur to hide in another’s relative’s place.

7.  One day in 2015 she was shocked to see her husband with some of his fellow AL supporters in the street in Rangpur that she feared that he had been able to locate her, and believing that it was no longer safe to remain in Bangladesh, and so she made arrangements to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she eventually did in 2016, but when her last employment was prematurely terminated on 2 February 2018, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 15 October 2021 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”).

9.  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 and/or his fellow AL supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her husband to seriously harm or kill her or that those unknown men who attacked or raped her were AL supporters sent by her husband to harm her, that in any event her problems with her husband were private domestic disputes between the 2 of them 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 164 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 or Khulna where it would be difficult if not impossible for her husband to locate her.

10.  On 28 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 28 September and 25 October 2023 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 16 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  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 husband or anyone else that caused her to overstay in Hong Kong to seek non-refoulement protection, that her credibility was further undermined by her failure to raise her claim upon her first arrival in Hong Kong until several years later and only after her arrest by the police, that in any event whatever risk of harm from her husband arose from their private domestic dispute 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.

12.  On 8 January 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge. 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.

13.  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.

14.  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 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.

15.  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.

16.  Moreover, the Applicant recently on 17 January 2024 wrote to request to “close her case” as it is now safe for her to return to her home country.

17.  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, and in view of her latest confirmation that it is safe for her to return to her home country, 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