AKTER AMENA v. TORTURE CLAIMS APPEAL BOARD

HCAL 884/2019

[2023] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 884 OF 2019

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 40-year-old national of Bangladesh who last arrived in Hong Kong on 21 March 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 March 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 3 April 2016, she did not depart and instead overstayed, and on 26 April 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her husband and/or his new wife over their marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Narayanganj, District Fotulla, Bangladesh. After leaving school she worked in the factory, married her husband and raised a family with a daughter in her home village.

3.  Her husband worked as a social worker but had a hot temper, and was throughout the marriage being verbally and physically abusive towards the Applicant over their financial disputes that strained their relationship to the extent that her husband simply failed to return home when the Applicant became pregnant with their daughter.

4.  In April 2013 after giving birth to their daughter, the Applicant went to look for her husband at his parents’ home and discovered that he had married another woman, which led to a big quarrel between them during which the Applicant was attacked by her husband with a knife and suffered cuts to her right hand.

5.  After the incident the Applicant reported the attack to the police who then arrested her husband, and as a result his new wife sent her brothers to beat the Applicant and tried to snatch her daughter from her until her parents intervened and drove them away.

6.  The Applicant again reported the attack to the police, and soon she started to receive death threats from both her husband and his new wife. As she became fearful for her life, the Applicant fled to her parents’ home in Dhaka where she placed her daughter in their care, and planned to leave the country by applying to work as a foreign domestic helper in Hong Kong, and on 17 June 2014 she departed for Hong Kong to start her first employment contract, but when her last employment was terminated on 3 April 2016, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 December 2017 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 9 January 2018 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”).

8.  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 and/or his new wife 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, that in any event it was a private personal 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 157 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 where her parents lived and where it would be difficult if not impossible for anyone to locate her.

9.  On 18 January 2018 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 22 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband or his new wife that caused her to overstay in Hong Kong and to seek protection, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 1 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure;

(10)  Procedural unfairness in that the hearing bundle for her appeal before the Board was provided to her just a few days before her appeal hearing with the majority of the documents in English thereby giving her insufficient time or opportunity to prepare for her appeal due to her limited skill in English and lack of fund to afford an interpreter to assist her.

12.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  The only complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of documents in English of which she was unable to read or understand thereby giving her insufficient time to prepare for her appeal before the Board.

14.  Even if it is true that the hearing bundle indeed came to her late as alleged, and she did not provide any proof such as the covering letter to show the date of the delivery of the hearing bundle to her, I note that most of those documents such as her NCF or her record of interview had all been provided to her before when she was then represented by legal representation, and that at the hearing of her appeal before the Board she was assisted by an interpreter and never raised any issue over the hearing bundle or requested for any adjournment for more time to prepare for her appeal. As such I do not find this ground reasonably arguable for her intended challenge either.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.

17.  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.

18.  Moreover, the Applicant recently on 28 September 2023 wrote to request to withdraw her application as she wants to go back to Bangladesh as soon as possible.

19.  For these reasons I am 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 her wish to return to her home country as soon as possible, I accordingly dismiss her leave application, and vacate the scheduled hearing for 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