BEAUTY SHAHANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3076/2019

[2025] HKCFI 1891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3076 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 October 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 22 January 2024. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 43, is a national of Bangladesh. On 1 September 2016, she arrived in Hong Kong and was permitted to remain as a domestic helper. When her contract was prematurely terminated, she did not depart and instead overstayed since 8 November 2016. She surrendered to the Immigration Department on 3 April 2017. In due course, she lodged her non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by her brother-in-law and a loan shark.

6.  According to the applicant, there were two separate incidents including the brother-in-law attempting to murder her husband and to rape her. The applicant was also threatened by a loan shark as she was unable to repay her loan due to her domestic worker contract being terminated prematurely. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 20 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: there were no substantial grounds to believe the claimed future risk of harm by the applicant’s brother-in-law was real and foreseeable taking into account past experience, and the low intensity and frequency of past ill-treatment from the loan shark is indicative of a small future risk of harm [13-14]; state protection was available [17-18]; and internal relocation alternatives were available [19-24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 9 August 2019, the Board conducted an oral hearing for her appeal, during which the Board found the applicant’s evidence of the alleged incidents to be inconsistent and that she was not a witness of truth [42-46].

10.  Having considered the evidence, the Board found the applicant not to be credible and that the applicant did not make out any of the applicable grounds [51-54]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 18 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and deposed that she would like to reject and set aside the decision, , but did not put forth any grounds.

DISCUSSION

13.  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).

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

15.  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.”

16.  The applicant has raised no valid ground 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.