ZAHEN MST AIREN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1260/2023

[2026] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1260 OF 2023

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for Leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Bangladesh who arrived in Hong Kong on 1 August 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 August 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 August 2019, she did not depart and instead overstayed, and on 7 January 2021 she surrendered to  the Immigration Department and 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 for divorcing him and/or by his creditors over his debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Gazipur, Bangladesh.  After leaving school she married her husband as arranged by her family, and raised a family with 2 children in her husband’s home district in Tangail.

3.  Her husband was then working in Singapore and would return home in Bangladesh only for holidays, however during which she discovered that he was an alcoholic and that whenever he was drunk he would become violent and abusive towards her by slapping and beating her.

4.  In 2013 her husband returned to Bangladesh to start his own business in Tangail and Gazipur with loans from his neighbours, but in 2015 he lost his business whereupon he again went to work in Singapore.

5.  However, soon his creditors started to come to the Applicant’s home to look for her husband for repayment of his loans, and in order to pacify them the Applicant gave them cheques and then sent them away knowing that those cheques would not be honoured as there were no money in her account, whereupon those creditors would return to threaten her.

6.  To avoid further threats from her husband’s creditors, the Applicant in 2017 moved back to her parents’ house with the children, and as she found it no longer able to tolerate being married to her abusive husband, the Applicant in 2018 applied and obtained a divorce against her husband, but later when he found out about it he became furious and threatened to kill her, and so the Applicant made arrangement to leave the country by applying to come to Hong Kong to work as a foreign domestic helper to avoid his threats and to support her children.

7.  Accordingly on 1 August 2019 the Applicant departed Bangladesh for Hong Kong to start her employment, but when her employment was prematurely terminated on 24 August 2019, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and after subsequently surrendering to the Immigration Department she then raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 27 October 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 June 2022 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 former husband or his creditors 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 either her husband or his creditors to seriously harm or kill her other than just angry words and empty threats, that in any event these were private marital or monetary disputes between them 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 165 million people spread across a vast territory of more than 130,000 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.

10.  On 27 June 2022 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 23 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 12 July 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] 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 or his creditors that caused her to overstay in Hong Kong to seek protection, that even if her account of events prior to her departure of Bangladesh were true that there was no reliable evidence of any real intention of her former husband or his creditors to seriously harm or kill her other than just angry words and empty threats, and that in any event these were private marital or monetary disputes between them 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.    

12.  On 24 July 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)   That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)   That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)   That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(4)   That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   That in dismissing the Applicant’s appeal there is no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of her supporting documents or turned his mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2 risk;

(6)   That the Adjudicator had relied on cases which are outdated considering the dramatic changes with the lack of credible sources of information had resulted in the Board making groundless speculations.          

13.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in evidence and answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the findings of the Board; 

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim if real are localized ones 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.                

17.  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.

18.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Bangladesh as soon as possible.

19.  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 more issue 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