BEGUM MOSAMMAD MAHAMUDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1715/2019 [2024] HKCFI 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1715 of 2019

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 present 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 12 June 2019 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”), she appeared before the Court on 13 May 2024.

The applicant

3.  The applicant, aged 37, is a national of Bangladesh.  She arrived in Hong Kong on 13 July 2015 to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 10 January 2016 and she overstayed since 25 January 2016.  The applicant was arrested by the police on 15 March 2016 for overstaying and she made a non-refoulement claim on 17 March 2016.  The claim was made on the basis that, if refouled, she would be harmed or killed by her husband, who was affiliated with Awani League (“AL”) because she was a member of the Bangladesh Nationalist Party (“BNP”).

4.  According to the applicant, she became a member of the BNP in 2010 under the influence of her family. She married her husband a month later.  One day in 2011, the applicant quarreled with her husband because he attended a rally organised by AL.  Since then, the relationship between the applicant and her husband became sour and they had constant arguments about their political differences.

5.  One day at the end of 2011, the applicant’s husband brought two AL members home, who together assaulted the applicant with sticks.  The applicant suffered injuries to her left arm and left hand (“the first attack”).  She went to the hospital for treatment and stayed there for a month.

6.  Upon discharge, the applicant relocated to her sister’s home in Dhaka.  In 2013, she moved to her brother’s home in Dhaka and stayed there for a year.  Between 2012 and 2015, she kept receiving phone calls from her husband, who asked for her whereabouts and her return to stay with him.  Meanwhile, the applicant’s siblings considered unsafe for her to remain in Bangladesh given the wide connection of AL.  In 2014, the applicant started to receive domestic helper training.  Eventually she left Bangladesh and arrived in Hong Kong on 13 July 2015 to work as a domestic helper.

7.  The applicant maintained contact with her family while in Hong Kong.  Her brothers told her that her husband had gone to their houses seeking for her whereabouts and threatening them. She also learnt that her husband had filed a criminal case against her, though she had no idea what the case was about.

8.  The applicant was of the view that she could not seek protection from the police because AL was the ruling party and the police would only safeguard their interest.  She also considered internal relocation not viable because her husband could make use of the wide network of AL to find her.  

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 December 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that the past behaviour of her husband indicated he had no real intention to seriously harm or kill her.  Meanwhile, the claimed criminal case against the applicant was based merely on hearsay and there was also no indication that she would not receive a fair trial and due process according to the country of origin information (“COI”).  Furthermore, the applicant’s behaviour for not seeking protection at the earliest opportunity was also inconsistent with that of a person who was genuinely in fear [12].

12.  In any event, the Director found that (i) state protection would be available to her [13] - [15]; (ii) internal relocation would be viable [16] - [23]; (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24] - [29], Persecution risk [30] - [35] or Torture risk [36] - [37] and (iv) the action by the applicant’s husband originated from his personal grudges with the applicant, which had nothing to do with the Bangladeshi government [38] - [39].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 6 May 2019, the Board conducted an oral hearing.   

14.  During the hearing, the applicant claimed one more assault incident from her husband, which happened when she went to stay with her parents immediately after her discharge from the hospital.  On that occasion, the applicant’s husband together with six AL members came to the house, intending to take the applicant away.  When the applicant’s father and brothers intervened, the applicant’s husband and the six AL members assaulted them.  The applicant was also hit on her right thigh, her back and her mouth during the process (“the second attack”) [37].

15.  The Board considered that much of the applicant’s evidence was unreliable [53].  They found that she was at most a minor supporter for BNP with no significant involvement in its activities [54].  It also considered it implausible that her family, who were all BNP supporters, would not have taken into account the political affiliation of her husband when arranging the marriage [55].  In the meantime, the applicant’s evidence regarding the attack on her by her husband was also inconsistent.  She claimed that she had been assaulted two times at the hearing while in the non-refoulement claim form, she claimed that she had only been assaulted once [56].  There was also inconsistency about the circumstances of the first attack [57] while the claim about receiving threatening phone calls from her husband had never been mentioned before [58].

16.  The Board accepted that the applicant was a supporter of BNP, rather than a member, with no significant involvement in the party’s affairs.  It accepted that she argued with her husband about their respective political affiliations and the happening of the first attack.  However, the Board did not accept that the applicant was being assaulted by knives in the first attack, nor did it accept the happening of the second attack.  It also rejected her claim about receiving threatening phone calls from her husband [62].   

17.  Furthermore, the Board found no credible evidence that the applicant’s husband had made any attempt to find and harm her during the three year period after she relocated to Dhaka and before she left Bangladesh in July 2015 [64].  There was also no credible evidence that a criminal charge had been laid against her [65]. The Board therefore considered that the applicant would not face any real risk of harm upon return to Bangladesh [67].  In fact, the COI also showed there was no risk of harm for ordinary BNP members [68] - [69], while state protection and internal relocation would also be available [71], [86] - [94].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [10] - [26], [72] - [85].  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

19.  The applicant has filed Form 86 dated 21 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In the affirmation in support of her application, the applicant said that she was only given the hearing bundle in English language shortly before the Board hearing.  She could not understand the hearing bundle, nor could she find a friend to assist her.

DISCUSSION

21.  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).

22.  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 understands the Board’s Decision and she was free to express herself before the Board.  She further said that she was not saying that the Board was wrong.  She only wants the Court to review her case.

23.  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.”

24.  For the reasons given above, the Board had accepted part of the applicant’s evidence whilst rejected the other parts.  It was entitled to decide as to what evidence could be accepted and what evidence not.  There is nothing amiss in the Board’s assessment of the evidence.  The Board had further considered state protection and internal relocation alternative, which will alleviate her risk if she returns to Bangladesh.

25.  As to the applicant’s complaint that she was only given the hearing bundle shortly before the hearing and that she did not understand the contents in English, she had not made this known to the Board at the hearing and asked for an adjournment.  She is not entitled to interpretation service all the time throughout the proceedings[1]. Nor did she tell the Board and asked for assistance at the hearing.  From the Board’s Decision, it seems clear that the Board was able to communicate with the applicant without any problem at the hearing.  The Board was able to come to its finding of the facts of the case ultimately.  Her complaint is inconsistent with what she said before this Court.  In any event, I find that the applicant was not prejudiced in the hearing before the Board.

26.  The applicant has raised no valid ground to challenge the Board’s Decision.  There is simply no good reason for this Court to interfere with the Board’s finding of the facts of the case.

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

CONCLUSION

28.  In the circumstances, 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