ROY BHAGYA SHREE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2912/2019

[2025] HKCFI 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2912 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 26 March 2025. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 35, is a national of Bangladesh. She was a domestic worker and her employment contract was terminated prematurely. She did not leave and overstayed since 1 September 2017. On 23 March 2019, she was arrested by police and referred to the Immigration Department. She lodged a non-refoulement by written representation on the ground that, if refouled, she will be harmed or killed Kader Mollah, a leader of the Awami League (“AL”) and his people.

4.  According to the applicant, all the incidents happened between April 2013 and October 2016. During this period of time, Kader Mollah and his people went to her house. He proposed to marry the applicant and her mother rejected it, where they assaulted her mother and gang raped her. She was taken to the brothels in Bangladesh and India where she was raped by a number of people. With the help of another girl in the brothel, she escaped from the brothel in India and she returned to Bangladesh. She came across Kader Mollah on a street. She poked a pen into his eyes when he tried to grab her. Kader’s brother came to catch her. She hit him with glass bottle on his head. As a result, she learned that he was dead. With the aid of the employment agency, she came to Hong Kong to work as a domestic helper. She was told that her father and brother were burnt to death by Kader Mollah and her mother and sister were stabbed to death by him as well.

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that from her experience in Bangladesh, her enemies were not looking for her, so her risk of harm, if she returns to Bangladesh, is low; that state protection will be available; and internal relocation is viable. [13]-[19]

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 2 September 2019, the Board conducted an oral hearing for her with an interpreter.

8.  Having considered the applicant’s evidence, the Board found that the applicant’s evidence was neither plausible nor reliable; that it was a fabrication of her own story; and that the state was not involved. [80]-[118]

9.  For the above reasons, the Board dismissed her appeal.

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

10.  The applicant has filed Form 86 dated 3 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has, insofar as the Board is concerned, raised the grounds below in support of her application.

(1)  The Board’s Decision is wrong and is unfair and unreasonable, without taking into account of BOR 2 risk.

(2)  The Board had placed too much weight on the country of origin information without considering her personal experience.

(3)  The Board had conducted the hearing in an unfair manner by not accepting her explanation and it required her to answer questions that she is not in a position to respond.

(4)  The Board had dismissed her appeal where it should have allowed her appeal.

DISCUSSION

12.  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).

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

14.  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.”

15.  The Board has given the reasons in the Board’s Decision in support of its finding of the facts.

16.  Those grounds under paragraph 11 are mostly her bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

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

DISPOSITION

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