HOSSAIN NAYNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2384/2019

[2025] HKCFI 606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2384 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 27 January 2025.

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 38, is a national of Bangladesh. She last arrived in Hong Kong on 8 May 2014 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 30 June 2014 and she had overstayed since 15 July 2014. The applicant surrendered to the Immigration Department on 14 March 2017 and she made a non-refoulement claim on 17 August 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by members of Awami League (“AL”) because her father failed to give protection money to them.

5.  According to the applicant, she and her family were affiliated to the Bangladesh Nationalist Party (“BNP”). In March 2012, her father was assaulted by AL members shortly after he refused paying protection money to them. Subsequently, the applicant’s father was arrested by the police for drug trafficking and refusal to make loan repayment. He was tortured and was forced to confess on some false charges. On 2 October 2012, he was kidnapped by some unknown persons, which the applicant believed were plain-clothes police officers. When the applicant and her brother sought help from the police the next day, they asked for bribe.

6.  As to the applicant, she claimed that there was an occasion when an AL member tried to indecently assault her. On another occasion, a group of around 20-25 AL members came to vandalise her family’s house and one of them even attempted to rape her. The applicant also claimed that she and her brother were attacked by AL members when they participated in a BNP procession. The applicant managed to escape, but her brother was arrested. He was subsequently released on bail pending court hearing, but he jumped bail in October 2013 and had become a fugitive since then.

7.  The applicant claimed that various reports had been made to the police, but no action was taken by them. On 27 October 2012, the applicant relocated to her aunt’s home for two months after she received a threatening call from an AL member requesting her to withdraw her claim from the police. Thereafter, she stayed in an employment training centre in Dhaka for 5-6 months. Eventually, she came to Hong Kong to work as a FDH on 23 September 2013.

8.  While in Hong Kong, the applicant was informed by her mother that the situation in Bangladesh had further deteriorated. She was of the view that she could not seek protection from the police because they were under the influence of AL and they took no action when the matter was reported to them previously. She also considered internal relocation not viable. Meanwhile, although the applicant had been to India three times previously, she decided to return to Bangladesh despite the claimed threat because she knew nobody there.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 May 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 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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the past ill-treatment received by the applicant failed to attain a minimum level of severity [12]-[14]; (ii) the claimed ill-treatment received by the applicant’s father was based on hearsay and was far-fetched [15]-[16]; (iii) it was the applicant’s mere speculation that her father was taken away by plain-clothes police officer [17]; (iv) the applicant’s behaviour was inconsistent with that of someone genuinely in fear, so that the perceived risk of harm was not as imminent as she claimed [18]-[20]; (v) state protection would be available and that misconduct of individual officers should not be taken as the stance of the Bangladeshi government in general [21]-[26] and (vi) internal relocation would be viable [27]-[33].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 24 May 2019, the Board conducted an oral hearing.

13.  The Board found the role of the applicant’s father in BNP was not prominent, while the applicant and her brother were merely grass-root level BNP supporters. Although the country of origin information (“COI”) indicated ongoing political conflicts between AL and BNP, there was no evidence showing that grass-root level BNP supporters would likely be targeted [61]-[63], [83].

14.  Regarding the applicant’s claims about the money extortion and assault on her father in March 2012, the Board could not attach any weight given that they were hearsay and that her evidence was also inconsistent [65]-[66]. Meanwhile, although it was accepted that the applicant and her brother were attacked during the BNP procession on 17 April 2012, there was insufficient evidence to show that the applicant was personally targeted by AL [67]-[68]. As to the attempted indecent assault and vandalisation of the applicant’s family house, the Board accepted that these incidents did happen, but was of the view that these were done for the purpose of money extortion without any political motive. The attempted rape however was not accepted given the inconsistencies of the applicant’s evidence [69]-[72]. In the meantime, there was no reliable evidence showing that the police were unwilling to assist the applicant with her problems. The fact that the applicant was threatened by an AL member to withdraw her claim from the police indicated that the police had taken action [73]-[74].

15.  The Board considered that the low intensity of past ill-treatment from AL members indicated that they had no real intention to seriously harm or kill the applicant [76]-[77]. The AL members were acting in their private capacities with no evidence of state involvement and that their motives were for extortion of money rather than for any political purpose [78]-[79]. In any event, nothing eventful happened to the applicant between October 2012 and September 2013 after she left her hometown and there was also no indication that AL members would continue pursuing her given the lapse of time [80]-[82].

16.  Based on such findings and in light of the COI indicating the availability of state protection [43]-[49], the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [93]-[128], [132]-[135]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

18.  In her affirmation in support of her application, the applicant has raised the grounds below:

(1) procedural impropriety: failure to apply properly para 2 of the UN committee against Torture General Comment No.2; failure to make inquiry into country of origin conditions of Bangladesh and the dictatorship of the Awami League of killing the democratic system and that she would face such risk; failing to consider BOR 3 risk; and failing to consider state acquiescence; and

(2) error/misdirection in law: failing to consider psychological strain and threats to her personally; and no sufficient basis to conclude that she and her family would not be at risk of being subjected to torture and/ore CIDTP upon refoulement.

DISCUSSION

19.  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).

20.  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 that she could not challenge the Board’s Decision and she only wanted to stay in Hong Kong for two and a half years more.

21.  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.”

22.  Those grounds under paragraph 18 are the applicant’s bare assertions or personal comments without any evidence in support. In view of her submission before the Court, those grounds are not valid.

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

DISPOSITION

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