MARMA MAYSAU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1523/2021

[2024] HKCFI 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1523 of 2021

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 Decision dated 21 October 2021 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”), a hearing was fixed for her to appear before the Court on 15 January 2024. However, she was absent without prior notice to the Court. I shall deal with her application on paper.

The applicant

3.  The applicant, aged 28, is a national of Bangladesh. She entered Hong Kong on 24 September 2019 to work as a foreign domestic helper. Her employment contract was pre-maturely terminated on 3 October 2019 and she overstayed since 18 October 2019. She was arrested by the police on 17 April 2020 for the offences of (i) breach of condition of stay and (ii) administering a poison or other noxious thing with intent to procure miscarriage. The applicant claimed non-refoulement protection by making three written submissions in June and July 2020. She lodged the non-refoulement claim form on 2 September 2020. The claim was made on the basis that, if refouled, the applicant would be ill-treated or even killed by Aong Kay Ching (“Aong”) because she refused to marry him as his third wife.

4.  According to the applicant, she first came to know Aong in 2018. To her knowledge, Aong had divorced his first wife and married his second wife. She and Aong were merely acquaintances and their relationship was not close. One morning in July 2018, while the applicant was in the woods, she met Aong, who demanded her to marry him. Aong even grabbed her arm, pointed a knife at her and threatened to kill her if she refused his proposal. After about 15 minutes, the applicant told Aong that she would consider his proposal. He then released her after repeating his death threats (“the threatening incident”). The applicant told her parents about the threatening incident. Her parents considered that she should accede to Aong’s request to avoid being killed.

5.  Around a week after the threatening incident, the applicant moved to work at a milk powder manufacturing factory in another city and lived with her friend there so as to avoid Aong. Her parents told her that Aong often enquired her whereabouts from her neighbours, though he did not approach them. By December 2018, as the applicant still did not feel safe, she sought employment overseas as a domestic helper. The applicant finally left Bangladesh and arrived in Hong Kong on 24 September 2019.

6.  The applicant last contacted her parents a month before the screening interview on 27 October 2020. They told the applicant that Aong figured out the her previous whereabouts and he approached them directly to ask for her current whereabouts. The applicant was of the view that she could not seek protection from the authorities because they were corrupt and that they would only protect rich and powerful people. She also thought internal relocation within Bangladesh not viable as she feared that Aong would eventually locate her given that he was a powerful man.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 November 2020 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found the absence of injury inflicted by Aong on the applicant is indicative of the low future risk of harm upon her return to Bangladesh. Furthermore, the applicant’s behaviours were also inconsistent with persons who are genuinely in fear [12]. In any event, the Director was of the view that (i) state protection will be available to her upon her return [13]-[16]; (ii) internal relocation is viable [17]-[18] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [19]-[24], Persecution risk [25]-[28] or Torture risk [29]-[31].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 11 May 2021, the Board conducted an oral hearing with an interpreter.   

11.  Having considered the applicant’s evidence, the Board had doubts on the overall credibility of the applicant [51]-[53]. Further, the Board took the view that even if the threatening incident were accepted, the applicant’s case still failed to meet any of the requirements under Persecution risk [13]-[15], [56]-[62], BOR 2 and BOR 3 risk [16]-[20], [25]-[26], [63]-[65], [71] or Torture risk [21]-[24], [66]-[70]. Furthermore, state protection and internal relocation were also available to the applicant [58g], [72]-[80].

12.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

13.  The applicant has filed Form 86 dated 3 November 2021 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant did not raise any specific ground in support of her application in her affirmation dated 3 November 2021.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

17.  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.”

18.  For the reasons given by the Board in paragraph 11, the Board rejected the applicant’s evidence and her claim as well. The applicant has raised no valid reason to challenge the Board’s Decision.  There is no reason that this Court should interfere with the Board’s Decision.

19.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  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