AKTER MST SHIRIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 45/2022

[2025] HKCFI 5020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 45 OF 2022

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Bangladesh who last arrived in Hong Kong on 22 July 2018 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 her last employment contract was prematurely terminated on 19 February 2020, she did not depart and instead overstayed, and was arrested more than 3 months later on 8 June 2020, and for which she was sentenced to prison for 2 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) over their land dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Gopalpur, Birganj, District Dinajpur, Bangladesh. After leaving school she married her husband and raised a family with 2 children in her home district.

3.  However, her marriage eventually ended in divorce whereupon she moved with her children back to her parents’ home, and in order to make her living and to support her children, she come to Hong Kong in 2014 to work as a foreign domestic helper.

4.  In 2018, she returned to her home village for holiday, and purchased a piece of land for her future home before returning to Hong Kong to continue with her employment.

5.  However, shortly thereafter she received telephone calls from her father informing her that some local AL leaders had wanted to purchase her land for their party’s use, and when she refused to sell, they then made threats against her and her family.

6.  To avoid further threats and intimidations from those AL people, her parents moved to a neighboring village to take shelter in some relative’s place, but several weeks later the Applicant was informed by her mother that those AL people had located them and attacked her father that he subsequently died from his injuries.

7.  As the threats from those AL people for the Applicant’s land had persisted, her mother then moved the rest of the family and the Applicant’s children to another town, and warned the Applicant not to return to Bangladesh for fear of being harmed or killed by those AL people, and so after her last employment was terminated on 19 February 2020, the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2021 and attended screening interview before the Immigration Department with legal representation.             

8.  By a Notice of Decision dated 21 May 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by those local AL supporters upon her return to Bangladesh due to the absence of any 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 to sell her land to them, that in any event it was a private land dispute 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 164 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 areas of the country away from her home district in large cities where it would be difficult if not impossible for anyone to locate her.

10.  On 3 June 2021, 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 October 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 22 December 2021, 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 any AL people over any land dispute that caused her to overstay in Hong Kong to seek protection, that even if her account of events occurred in Bangladesh were true that there was no reliable evidence of any real intention of those AL people to seriously harm or kill her other than to press her to sell her land to them, and that in any event it was a private land dispute between them 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 that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 11 January 2022 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 Board failed to meet the greater care and duty owed to a self-represented claimant;

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

(5) That the Board failed to conduct any analysis of the Applicant’s supporting documents or her right to life under BOR 2 in dismissing her appeal;

(6) That the Adjudicator had relied on COI that are outdated with the lack of credible source of information resulted in making groundless speculations;

(7) That the Adjudicator failed to take proper account of the documents submitted by the Applicant to show that the problems in her home country are very severe.          

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 Board unlawfully fetter its discretion or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI when on the factual basis of even her own case that it was a private land dispute without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor did she request any oral hearing for her application, 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 essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her 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 finding of the Board.

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.

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.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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