TANCHANGYA LAXMI RANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2031/2019

[2024] HKCFI 2827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2031 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Director’s Decision dated 28 November 2019 and the Board’s Decision. However, the Director’s Decision has been superseded by the Decision dated 3 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 9 October 2024. I shall deal with her application on paper.

The applicant

3.  The applicant, aged 36, is a national of Bangladesh. She last entered Hong Kong to work as a foreign domestic helper (“FDH”) on 17 June 2014. Her employment contract was prematurely terminated on 13 December 2015 and she overstayed since 28 December 2015. The applicant surrendered to the Immigration Department on 5 May 2016 and she made a non-refoulement claim on 14 September 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by some villagers affiliated to Bangladesh Nationalist Party (“BNP”). She also feared harm from her uncle because she could not repay a loan owed to him.

4.  According to the applicant, her father used to run a business in the timber industry. In her locality, BNP was very influential despite not being the ruling party. Since around 2010, many villagers became jealous of her father and thought his business went well because of his association with Awami League (“AL”). One day in around 2013, while the applicant’s father was away, 10-15 villagers came to vandalise her house and assaulted her and her brother. Thereafter, the applicant and her family relocated to her aunt’s house. In around January 2014, the applicant’s house was demolished when nobody was at home.

5.  To avoid further danger and to ease the financial burden of her family, the applicant attended an employment agency in Dhaka for training in December 2013 and she eventually arrived in Hong Kong to work as a FDH on 29 March 2014. While in Hong Kong, the applicant was informed by her family that in December 2015, some villagers came to her home to threaten her family that they would be killed if they continued to remain in the village. Meanwhile, the applicant also feared harm from her uncle because she borrowed some money from him before she left for training in Dhaka, but she failed to repay the loan owed to him.

6.  The applicant did not dare to seek protection from the police because she feared retaliation from the villagers. She considered internal relocation not viable as well because she lacked the necessary financial resources and had no friend/relative to rely on elsewhere. She also worried to be found by the villagers. 

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 November 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity of past ill-treatment from the villagers indicated that they had no real intention to seriously harm or kill the applicant [13]-[14]; (ii) given that nothing eventful happened to the applicant’s family back in Bangladesh, the risk of harm was not as imminent as she claimed [16]; (iii) the feared harm from her uncle was merely her speculation [17]; (iv) the veracity of her claim was doubtful in light of her delay in seeking non-refoulement protection [18]; (v) state protection would be available [19]-[23]; (vi) internal relocation would be viable [24]-[26] and (vii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[42].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 9 May 2019, the Board conducted an oral hearing.

11.  The Board found that the applicant was not a witness of truth and had fabricated her claims [98]. She gave inconsistent evidence regarding various aspects of her claim including the details of the loan, her father’s business as well as hers and her father’s political affiliations. In any event, it was implausible that the BNP affiliated villagers would dare to destroy her father’s business and evict him from his house if they considered him to be associated with the ruling AL [100]-[112].

12.  Given the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claim in its entirety [113]. The Board found that the business operation of her father involved nothing political in nature. It was further not accepted that the applicant’s house had been damaged by the villagers and that she had an outstanding loan back in Bangladesh [114]-[120].

13.  The Board was satisfied that there was no real risk that the applicant would face any of the proscribed forms of harm upon return to Bangladesh [121]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [2]-[20], [122]-[125].

14.  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

15.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant said that the Board failed to consider all the matter he had raised and it had not given adequate reasons for its decisions.

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.  The Board found that the applicant’s claim was based upon fabricated stories. Those grounds under paragraph 16 are the applicant’s general assertions without any evidence in support. They are not valid to challenge. The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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