AKTER SATHI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1258/2022

[2024] HKCFI 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 OF 2022

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Bangladesh who last arrived in Hong Kong on 12 February 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 12 February 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 June 2020, she did not depart and subsequently overstayed, and on 20 January 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her husband and/or his family over their domestic and dowry disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dapaerakpur, Fatullah Narayanganj, Bangladesh. After leaving school she in 2015 started to come to Hong Kong to work as a foreign domestic helper.

3.  In April 2019 she returned to Bangladesh to marry her husband who was a farmer working together with his father, but there were disputes between the two families over the amount of dowry demanded by her husband’s family which led to frequent arguments thereafter between them, during which her husband and his family would gang up to verbally attack the Applicant and sometimes even assaulted her which caused her to suffer cuts and bruises all over her body as well as mental anguish.

4.  After a particular violent beating by her husband with a wooden stick that she later required medical treatments at a local clinic, and to avoid further abuses the Applicant decided to apply to return to work in Hong Kong, and when she later informed her husband of the same, he became furious and threatened to kill her but was intervened by her parents who then brought her back to their home in Dapaerakpur.

5.  During her stay in her parents’ place, her husband continued to come to demand for her return with threats to kill her if she failed to do so, and so the Applicant on 12 February 2020 departed Bangladesh for Hong Kong to resume her job as a foreign domestic helper, but when her last employment was prematurely terminated on 30 June 2020, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 October 2021 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 30 November 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or his family upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to return to her husband’s home, that in any event these were some private domestic dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 164 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for her husband or his family to locate her.

8.  On 10 December 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 7 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from her husband and/or his family over their dowry and domestic disputes but found no official involvement in their disputes that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband or his family that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 15 November 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she asserted that her enemy was the powerful ruling party of her country which appears to me something she just copied from the case of some other non-refoulement claimant but which are wholly irrelevant to her claim which even on her own case was based on some private domestic disputes with her husband and his family without any official or political involvement and hence not applicable to her claim at all. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  Having considered 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 Applicant’s claim.

14.  Moreover, the Applicant recently on 2 April 2024 filed an affirmation requesting to “close” her application as her problem in her home country has been resolved.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her 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