FARZANA MST v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2356/2019

[2025] HKCFI 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2356 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 30 December 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 41, is a national of Bangladesh. She last arrived in Hong Kong on 24 January 2017 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 7 April 2017 and she had overstayed since 22 April 2017. The applicant was arrested by the police on 26 May 2018 and she made a non-refoulement claim on 2 June 2018. The claim was made on the basis that, if refouled, she would be harmed or even killed by members of Awami League (“AL”) because her late husband and parents-in-law were affiliated to the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, her late husband was a BNP member while her parents-in-law were BNP supporters. One day in early October 2016, 7-8 AL members broke into her house. After tying up the applicant and all her family members, they raped the applicant and stabbed her. She lost consciousness due to the trauma, but before that, she heard the assailants stabbed her husband and kidnapped her parents-in-law (“the house attack”). When the applicant regained consciousness, she was told by her neighbour that her husband had been killed while her in-laws and children were missing.

6.  The applicant stayed at a place offered by her neighbour upon discharge from the hospital. Shortly thereafter, she stayed at a training centre where she received FDH training. Eventually, she left Bangladesh and arrived in Hong Kong on 24 January 2017.

7.  During her detention at the Castle Peak Bay Immigration Centre, the applicant was informed that her in-laws were killed by AL members. She was of the view that she could not seek protection from the police because they would favour the ruling AL party. She considered internal relocation not viable as well because she could not afford living elsewhere and she also feared to be located by AL members.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 7 January 2019 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

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

c.  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”); and

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the conduct of the AL assistants showed that they had no real intention to seriously harm or kill the applicant [14]; (ii) the AL members concerned were not as powerful as she claimed [15]; (iii) there was no evidence of state involvement in the matter [16]; (iv) the applicant’s delay in seeking non-refoulement protection was inconsistent with the behaviour of someone genuinely in fear [17]; (v) state protection would be available [18]-[23] and (vi) internal relocation would be viable [24]-[30].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 9 July 2019, the Board conducted an oral hearing.

12.  The Board found that the applicant was not a witness of truth and had fabricated her claims [88]. She gave inconsistent evidence regarding various aspects of her claim including the circumstances and time of the house attack. The Board also considered it implausible that she would pass out given that the stab wounds were so minor that she could recover without any stitches and was unconvinced that she would not have attempted to find her children. In any event, the Board doubted that the applicant would be at risk upon return as the country of origin information indicated that non-politically active family members of political activist were not particularly targeted. Furthermore, the inconsistencies of the Notice of Appeal with her previous claims also undermined her credibility [89]-[97].

13.  Given the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claim in its entirety [98]. The Board found that neither the applicant nor any of her family members were affiliated to BNP and that the house attack was a fabrication [99]-[107].

14.  The Board was satisfied that there was no real risk that the applicant would face any of the proscribed forms of harm upon return to Bangladesh [108]. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [2]-[20], [109]-[112].

15.  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

16.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

17.  The applicant has raised the grounds below in support of her application:

(1)  Procedural impropriety: failure to properly apply para 2 of the UN committee against Torture General Comment No.2; failing to conduct sufficient inquiry into the relevant country of origin conditions, TCAB failed to consider that her life will be in danger if she returns to her country; the Board’s failing to give reasons for its assessment; the Board’s failing to consider that her enemies are very powerful and they can do anything to her.

(2)  Error/misdirection in law: failing to take into account the consideration of psychological strain and threats to kill her personally, and there was no sufficient basis to conclude that she and her family members would not be at risk of being subjected to torture or CIDTP upon refoulement.

DISCUSSION

18.  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).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she did not mean the Board was wrong. However, she asked this Court to review the Board’s Decision.

20.  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.”

21.  For the reasons given, the Board disbelieved the applicant’s evidence in support of her claim. Those grounds under paragraph 17 are bare and general assertions and comments without any evidence in support. In view of the applicant’s submission that she considered the Board was not wrong, those grounds are not valid to challenge the Board’s Decision.

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

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.