NAHAR NURUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1503/2019

[2024] HKCFI 1162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1503 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decisiondated 24 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing on 11 March 2024.  However, the applicant was absent without prior to the Court.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 38, is a national of Bangladesh. She last arrived in Hong Kong as a domestic helper on 8 August 2016. On 8 March 2017, her employment contract was prematurely terminated and she was arrested by the Immigration Department on 22 March 2017 for breach of condition of stay by taking up unauthorised employment. The applicant was subsequently convicted and sentenced to imprisonment for 6 weeks.  On 12 June 2017, the applicant raised a non-refoulement claim.  The claim was made on the basis that, if refouled, she would be harmed or killed by her neighbours who supported Awami League (“AL”) because she was a member of the Bangladesh Nationalist Party (“BNP”).  She also feared threats from the banks and individual creditors due to her husband’s unsettled loans.

4.  According to the applicant, she and her husband ran a grocery and cosmetics business in Bangladesh from 2004 to 2014. They obtained loans from the banks and individual creditors to finance their business. The applicant and her husband were BNP supporters, while most of their neighbours were AL supporters (“AL neighbours”). They always harassed the applicant and her husband by vandalising their shop and taking their stocks without paying. The applicant and her husband were also warned on two occasions that they would be tortured and killed if they continued supporting BNP. Due to the frequent harassment, their business was not doing well, so that her husband was unable to repay the monthly instalments to the individual creditors. Subsequently, the individual creditors started demanding repayment by making phone calls and coming to their shop to threaten her husband.

5.  One night in 2015, the applicant and her husband’s shop was set on fire. All their stocks were destroyed and her father-in-law was burnt to death because he was sleeping in the shop.  The applicant and her husband thought that AL neighbours were responsible for the arson. Her husband then fled, leaving behind the applicant and her daughters. Since then, the individual creditors came to the applicant seeking for her husband’s whereabouts. They also threatened to torture and kill her if she failed to settle the outstanding loans on behalf of her husband. Eventually, the applicant’s home was seized through court proceedings as repayment for part of the loans.

6.  Subsequently, the applicant moved to live with her parents. However, the individual creditors managed to locate her and kept demanding loan repayment by harassing her.  The applicant knew it was no longer safe to stay in her parents’ home, so she left her daughters and moved to Dhaka to stay with a friend.  The applicant attended a training school for foreign domestic helper in Dhaka for 6 months, after which she left for Hong Kong on 8 August 2016.

7.  The applicant maintained contact with her parents after she left Bangladesh. She was informed that the individual creditors were still seeking for her whereabouts and threatened to kill her.  However, she could not remember the last time when the AL neighbours visited her family.  

8.  The applicant had never made a report to the police about the threats from AL neighbours and the individual creditors.  She was of the view that they could not protect her because the individual creditors were rich and could bribe the police.  She also considered internal relocation within Bangladesh not viable because AL neighbours/individual creditors would be able to locate her anywhere within the country.

9.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 25 May 2018 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view the action taken by the AL neighbours, the banks and the individual creditors indicated that they had no real intention to harm the applicant, so that she did not face a real and imminent risk. Moreover, the applicant’s behaviour of not seeking any assistance from the police in Bangladesh was also inconsistent with a person who is genuinely in fear of being harmed [15]-[18].

12.  In any event,(i) state protection will be available to her upon her return [20]-[24]; (ii) internal relocation is viable [19], [25]-[26] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[42].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 26 February 2019, the Board conducted an oral hearing and she gave oral evidence.

14.  The applicant raised a number of new claims in her Notice of Appeal. She claimed that there were many houses being set on fire, among which included her relatives’ homes; there was a false against filed against her as well as her family and the police were seeking for her whereabouts [39].

15.  During the Board hearing, the applicant was unable to tell how much profit her grocery and cosmetics business was making. Her evidence in the hearing was also inconsistent with that in her non-refoulement claim form, in which she claimed that the AL neighbours and the individual creditors were in fact the same group of people, i.e. the loan was borrowed from her AL neighbours.  Besides, she  claimed in the Board hearing that the individual creditors assaulted her brother because they were unable to locate her in her parents’ house whereas she claimed in her non-refoulement claim form that the individual creditors managed to locate her and kept demanding loan repayment by harassing her.  Furthermore, there was also inconsistency of her knowledge about the whereabouts of her husband [41]-[81].

16.  The Board had serious concerns about the credibility of the applicant and found much of her testimony fabricated. The Board accepted that the applicant and her husband may have been involved in a business which was destroyed by a fire and they got into financial difficulty as a result. The Board also accepted that the applicant’s father-in-law might have died in the fire.  However, it did not accept that the business difficulties faced by the applicant and her husband were due to their political affiliation.  It also did not accept that the applicant was subjected to any court proceedings by creditors in Bangladesh, nor did it accept that the Bengali police had any adverse interest towards the applicant [84]-[96].

17.  Based on such findings, the Board was not satisfied that the applicant faced any reasonable possibility of suffering serious or significant harm if she returned to Bangladesh. It concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [14]-[23], [97]-[101]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

18.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In her affirmation and a statement attached to Form 86, the applicant raised the grounds below in support of her application.

(1)   The Board had unlawfully fettered its discretion by refusing the appeal on the grounds that they did not satisfy the requirements.

(2)   The Adjudicator acted in a procedurally unfair manner in dealing with her appeal: the Board had not given the applicant an opportunity to forward her submissions in an oral hearing, nor was she invited to submit written submissions.

(3)   The Board’s Decision is unreasonable or irrational in the public law sense or as a result of procedural errors or unfairness: the Board had relied upon the source of news which is not officially recognized or it simply hearsay.  It had also relied on outdated cases, with the result that it made groundless speculations that it is safe for her to return to her country.

(4)   The Board failed to meet the greater care and duty owed to her as a self-represented clamant.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

22.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

23.  The Board had considered the applicant’s evidence and, for the reasons given in paragraphs 14 and 15, supra, it came to conclude that the main facts in support of the applicant’s claim were her fabrication.

24.  The applicant’s grounds in support of her application are general assertions without any evidence in support.[1] She alleged that the Board did not hold an oral hearing. According to the Board’s Decision, paragraph 33 recorded that she had given oral evidence before the Board.

25.  The applicant therefore has raised no valid reason to challenge the Board’s Decision.

26.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I 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