AKTER RINA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1011/2023

[2024] HKCFI 2696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1011 OF 2023

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 38-year-old national of Bangladesh who arrived in Hong Kong on 6 May 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 6 May 2018 or within 14 days of its early termination, but after the completion of her employment on 6 May 2018 she failed to depart and instead  overstayed, and was arrested by police on more than 3 years later on 21 June 2021 for which she was subsequently convicted and sentenced to prison for 2 months, whereupon she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her creditor over her unpaid debts and/or by her husband’s girlfriend over their personal dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Chhattarpara, Chittagong, Bangladesh. After leaving school she worked in the factory, married her husband and raised a family with 3 children in her home district.

3.  In 2016, the Applicant applied to come to Hong Kong to work as a foreign domestic helper, and to meet the necessary expenses she borrowed a loan from a local money-lender to be repaid by instalments from her monthly salary earned in Hong Kong.

4.  On 6 May 2016, the Applicant arrived in Hong Kong to start her employment contract, and in the following month she remitted part of her salary to her husband din Bangladesh for her loan instalment payment, but soon she heard that her husband was having an affair with another woman, and so she stopped remitting any money to her husband for her loan repayment, and for which her creditor would make threatening phone calls to kill her when she returned to Bangladesh, while her husband’s girlfriend also threatened her on the phone not to return to Bangladesh to look for her husband.      

5.  Upon completing her last employment on 6 May 2018 and when she was unable to find another employment, the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 28 September 2021 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”).

7.  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 creditor or her husband’s girlfriend upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from either of them other than empty threats made on the phone, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event these were private disputes between her and her creditor and/or her husband’s girlfriend only 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 164 million people spread across a vast territory of more than 140,000 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 it would be difficult if not impossible for anyone to locate her.

8.  On 12 October 2021, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 23 and 28 of February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 May 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claims of fear of harm from her creditor or her husband’s girlfriend that caused her to overstay in Hong Kong to seek protection, that even if her claims were true that there was no reliable evidence of any real intention of her creditor or her husband’s girlfriend to seriously harm or kill her other than empty threats made on the phone, and that in any event there were private disputes between her and her creditor or her husband’s girlfriend only 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 alternatives for her to move safely to other parts 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. 

10.  On 26 June 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(3) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That in dismissing the Applicant’s appeal there was no indication of the Adjudicator interacting with the facts of the Applicant’s claim or to conduct any analysis of the supporting documents or turned the mind to the grounds under consideration of the risk of violation of the Applicant’s right to life under BOR 2;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information that resulted in it making groundless speculation.        

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in her claim if real are localized ones 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.                

14.  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.

15.  Moreover, the Applicant recently on 11 September 2024 in writing requested to withdraw her application as it is now safe for her to return to her home country.

16.  In the premises, as I am for the given reasons 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 that it is safe for her to return to her home country, I accordingly dismiss her leave 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