POLY SHARMIN AKTER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2519/2019

[2025] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2519 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 4 July 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”). It is the appeal against the Director’s decision on BOR 2 risk and the Board refused to extend time for the applicant to file her notice of appeal out of time. The other applicable risks were dealt with by the Board’s another Decision dated 24 November 2016 (“the Board’s 1^st Decision”). As the facts are the same for both Decisions, I shall take into consideration of the Board’s 1^st Decision as well. This is supported by the Board’s 2^nd Decision, paragraph 2:

“The facts of the Appellant’s case are in the USM Decision which should be read together with today’s Decision in order to see the whole picture.”

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 22 January 2024. I shall deal with her application on the papers.

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 39, is a national of Bangladesh. She came to Hong Kong to work as a domestic helper on 24 December 2013. Her employment was terminated and she did not depart. She overstayed since 20 March 2014. She was arrested by police and was referred to the Immigration Department. She lodged her non-refoulement by written representation dated 4 June 2014 on the basis that, if refouled, she will be harmed or killed by her husband or people of the Awami League (“AL”) because of her participation in and her work for the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, her husband was the son of her employer for her part-time job in 2006. She was forced by her husband, Islam, to marry him. Shortly after the marriage, Islam started to abuse her by hitting her for small matters. He hit her back with an iron rod, punched her and kicked her. He punched her abdomen when she was 4 months pregnant and she lost consciousness. When she was 8 months pregnant, he poured hot water over her body, punched her abdomen and pusher her onto the floor. In 2010, she worked as a volunteer of a non-government organization which promoted women’s rights. This organization was connected with the Bangladesh Nationalist Party (“BNP”). Islam was angry about it and he hit her back with an iron rod again, punched and kicked her. She then worked for the BNP. She received anonymous calls, warning her to quit the BNP. She did not do so. About 2 or 3 months later, she was kidnapped by 4 males to a room of an abandoned house where they tied her hands on a chair and also tied her legs. They slapped her severely, beat her shoulder, upper arm and leg. They poured boiling water onto her body. They then left. Some neighbours helped her and sent her to hospital where she received medical treatment. A few days later, she received anonymous call again, warning her to quit BNP or they would harm her son. In 2012, Islam came to take her son away and he never came back. In June 2013, she came to Hong Kong for employment.

6.  Details of the applicant’s story are set out in the Notice of Decision dated 16 July 2015 (“the Director’s 1^st Decision”).

The Director’s 1^st Decision

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

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”).

8.  By way of the Director’s Decision dated 16 July 2015 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) from the past events, her enemies did not have the intention to kill her or harm her further is she returns to Bangladesh; (ii) state protection will be available to her; and (iii) internal relocation alternatives are viable. [13]-[15]

The Director’s 2^nd Decision

9.  Upon the Director’s invitation, the applicant made her claim on BOR 2 risk, which refers to the 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”);

10.  The applicant had submitted 2 letters in which she stated that her husband is a violent man who is holding her son in custody, and if she returned to Bangladesh, he may kill her and her son. She further elaborated that the AL people are doing illegal activities and they can be violent against opposite parties. Having considered the additional materials, the Director found that the applicant failed to establish a personal and real risk of BOR 2 upon her return to Bangladesh. By Notice of Further Decision dated 6 June 2017 (“The Director’s 2^nd Decision”), the Director rejected her claim on BOR 2 risk.

The Board’s 1^st Decision

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 27 April 2016, the Board conducted an oral hearing for her.

12.  Having considered the applicant’s evidence, the Board dismissed her appeal and confirmed the Director’s Decision for the reasons below.

(1)  She did not raised any claim when she landed in Hong Kong for 5.5 months.[12]

(2)  The Board agreed with the Director’s reasons that there will not be real risk if she returns to Bangladesh. [27]

(3)  The Board did not believe that her enemies will still be interested in her after she had left Bangladesh since 2012 and she is no longer working for the BNP and internal relocation is viable. [30]

The Board’s 2^nd Decision

13.  The applicant appealed against the Director’s dismissal of the applicant’s claim on BOR 2 risk. However, her application was late for 2.5 months.

14.  The applicant had given her explanation that she did not receive the Director’s 2^nd Decision, not until she collected it from the Kowloon Bay Immigration Office. Further investigation showed that the Director had sent it to the applicant by post on 6 June 2017, and the letter had not been returned as undelivered. The Board therefore held that the applicant had no good explanation for her delay for 2.5 months and there was no special circumstances that it would be unfair or unjust to disallow the applicant time to file her notice of appeal. The Board therefore disallowed the applicant to file her notice of appeal out of time. In practical terms, the applicant’s appeal failed.

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

15.  The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.  The applicant has raised the grounds, which can be summarized as the Board did not take into account of BOR 2 risk in its decisions; the Board failed to consider the particular situations of Bangladesh when it assessed her appeal; the adjudicator should not take into account of her late filing of the notice of appeal as she had changed her address, which is the reason she did not receive the Director’s 2^nd Decision.

DISCUSSION

17.  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).

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

19.  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.”

20.  As to the reasons stated under paragraph 16, they are her bare assertions or opinions against the Board without evidence in support. The Board had considered the merits of her claim in its 1^st Decision.

21.  The applicant has a statutory duty to update her residential address with the Director and the Board under section 37ZA (2) of the Ordinance.

“Duties of claimant

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

22.  The Court of Appeal in Re: Zamora Rowel Espiritu [2022] HKCA 1883, Hon Barma JA and Au JA, 30 December 2022 held:

“18. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.”

23.  By parity of reason, the applicant has to bear the consequence of her failure to update the Director and the Board of her address.

24.  In any event, there is no merit in the applicant’s application as the Court of Appeal had held that if she failed her claim on BOR 3 risk, there is no chance that she will succeed on BOR 2 risk. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

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

DISPOSITION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss her application.