KHATUN ASMA AND ANOTHER v. S.J. GEISER, ESQ., AND ANOTHER

HCAL 34/2018

[2018] HKCFI 2101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 34 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 Applicants:

1.  The 1^st applicant (“A1”) is a 34-year-old national of Bangladesh who arrived in Hong Kong on 2 July 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 July 2016 or within two weeks of its early termination.  When her contract was prematurely terminated on 2 March 2015 she did not depart and instead overstayed until 27 October 2015 when she was arrested by the police.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her creditor for failing to repay her loan.  She was then released on recognizance pending the determination of her claim, during which she married her present husband and subsequently gave birth to a daughter the 2^nd applicant (“A2”) in Hong Kong for whom she later also lodged a non-refoulement claim on the same basis as hers.

2.  A1 was born and raised in Village Jajira, District Madaripur, Bangladesh.  After leaving school she married her former husband, gave birth to a son and moved to District Tangail.  However, their marriage ended in 2004 and she moved back to her mother’s home in Madaripur where she started a poultry farm business by borrowing a loan from BB, a wealthy land owner in the village who was also the local leader of the political party Awami League (“AL”).  It was a verbal loan agreement with interest payable every month by the applicant until the principal loan was paid off.

3.  However, the poultry business did not fare well and by mid-2013 the applicant had to close it down.  Upon hearing about it BB started to put pressure on her for repayment of the loan, and the applicant therefore went to work for a garment company in Dhaka so that she could keep up with the monthly loan interest payments.

4.  One day in late 2013 BB with some men came to the house of the applicant’s motherin Madaripur looking for the applicant, and when he was told that she was working in Dhaka, BB became abusive and demanded that his loan be repaid forthwith and threatened the applicant’s mother and sister that he would make their life miserable if the loan was not paid.

5.  After the incident the applicant’s mother and sister fled their home in Madaripur to take shelter at her grandfather’s home in Tangail, and the applicant subsequently returned to Madaripur to tell BB that she intended to work as a foreign domestic helper in Hong Kong and promised to repay her loan once she had received her salaries, and so she left Bangladesh on 1 July 2014 for her job in Hong Kong, where she subsequently overstayed after her contract was terminated, and when she was unable to make any loan repayment to BB she raised her non-refoulement claim for herself and A2, for which she completed their Non-refoulement Claim Form (“NCF”) respectively on 23 April 2016 and 20 February 2017 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 21 April 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that there would be any real and substantial risk of them being harmed or killed by BB upon return to Bangladesh due to the low intensity and frequency of the past ill-treatment from BB, that there is no evidence that BB intended to actually kill them as he just wanted his debt paid, that it was a private and personal dispute without any official involvement that state or police protection would be available to the applicants if resorted to, and that reliable and objectiveCountry of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other area away from her home district such as Dhaka where it would be difficult if not impossible for BB to locate them.

8.  On 27 April 2017 the applicants filed their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 20 November 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 5 December 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted A1’s claim of debt due to BB but doubted it was her reason for leaving Bangladesh to come to Hong Kong, and found that in any event the applicants can relocate to other area in Bangladesh away from her home district such as Dhaka as the largest city where it would be impossible for BB to locate them.

10.  On 8 January 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

 (1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

 (2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

 (3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

 (4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

 (5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

 (7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

 (8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

11.  These are however all very broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants.

12.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

13.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been already made available to them when they still had legal representation, whilst their NCF were completed with legal assistance, and that at their oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

14.  The fact is that it has been established by both the Director and the Board that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

15.  In the premises and having proceeded to consider 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 applicants’ claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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