MONDOL MONGOLI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 590/2022

[2024] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 590 of 2022

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;

1.  Extension of time to apply for leave for Judicial Review be granted;

2.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 8 July 2022, as amended pursuant to the order this Court dated 17 April 2024, for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) (i) dated 15 December 2021 (the “First Decision”) and (ii) dated 20 March 2024 (the “Second Decision”). In the First Decision, the Board dismissed the 1^st Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 August 2020 (the “First Notice”). In the Second Decision, the Board dismissed the 2^nd Applicant’s appeal against the decision of the Director in his Notice of Decision dated 24 November 2022 (the “Second Notice”).

The background

2.  The 1^st Applicant is a Bangladeshi national, now aged 37. She last entered Hong Kong to work as a foreign domestic helper on 27 February 2017. Her employment contract was prematurely terminated on 23 March 2017. She did not leave Hong Kong within the prescribed period. She was arrested and subsequently convicted on 13 January 2020 of two counts of breach of condition of stay by overstaying and taking up unapproved employment and two counts of using a false instrument. She was sentenced to 16 months’ imprisonment. While serving her sentence, she made a non-refoulement claim by way of written representation dated 17 February 2020.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. On 14 August 2020, the Director rejected her claim by the First Notice. The 1^st Applicant appealed to the Board. The appeal was heard before the Board on 12 April 2021.

4.  While the appeal was progressing, the 1^st Applicant developed a relationship with another non-refoulement claimant from Bangladesh. On 20 August 2021, they married according to religious ceremony in Hong Kong. The marriage was not registered as they were waiting for photocopies of their passports required for such registration. Then, on 7 November 2021, the 1^st Applicant gave birth to her daughter, the 2^nd Applicant herein. About five weeks later, ie on 15 December 2021, the Board issued the First Decision dismissing the 1^st Applicant’s appeal against the Director’s decision in the First Notice.

5.  The 1^st Applicant then made a non-refoulement claim on behalf of the 2^nd Applicant’s by written representations dated 7 June, 27 June and 5 July 2022. The 2^nd Applicant’s claim was rejected by the Director’s Second Notice dated 24 November 2022. She appealed. Her appeal was considered by a differently constituted Board. By its Second Decision, that Board also dismissed the 2^nd Applicant’s appeal.

6.  During the course of processing the 1^st Applicant’s leave application relating to the First Decision, the 1^st Applicant applied to join the 2^nd Applicant in her leave application. At that time, the 2^nd Applicant had not yet filed a formal leave application.

7.  According to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the 1^st Applicant’s leave application was more than three and half months out of time. The Court noted that the 2^nd Applicant’s claim is substantially hinged on the 1^st Applicant’s and that the First Decision was issued during the post natal period when the 1^st Applicant may be inconvenienced for understandable reasons. Hence, for expediency reason the Court granted extension of time to her to file her leave application and leave to amend that leave application by joining the 2^nd Applicant and making the Second Decision the second subject matter of the intended judicial review.

8.  As the 2^nd Applicant is an infant, the 1^st Applicant representing her was advised by letter dated 19 April 2024 to seek legal representation on her behalf, whether by the Director of Legal Aid or by private solicitors. The hearing was scheduled to a date four months later to enable her to do so.

9.  At the hearing, the 2^nd Applicant was not legally represented. The 1^st Applicant had applied for legal aid on behalf of the 2^nd Application, but her application was refused. She said that she had no funds to engage the services of a private solicitor and confirmed that she did not intend to seek legal representation. Having read the papers and considered of the issues raised by the application and having regard to the 1^st Applicant’s intention, the Court considered the absence of legal representation a mere irregularity and that the leave applications may be justly determined without the Applicants being legally represented.

The 1^st Applicant’s case considered under the First Decision

10.  The following account of the 1^st Applicant’s case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by her with legal assistance, the record of her screening interview in the presence of her lawyer and her evidence in the two appeals before the Board in the appeals against the Director’s First Notice. In gist, the 1^st Applicant claims that, if refouled, she will be killed by her ex-husband, who is a violent person, because of her family’s failure to meet his demand for dowry. It must be borne in mind that at the time of the Director’s First Notice and the Board’s First Decision, the 1^st Applicant had not yet given birth to the 2^nd Applicant; and issues about discrimination and threat to kill the Applicants arising from the 2^nd Applicant’s birth outside of wedlock had not yet arisen.

11.  The 1^st Applicant is of Hindu faith. She had received 10 years of formal education and had worked as a nursing assistant for two years and then as a foreign domestic helper in Hong Kong for three years.

12.  In about June 2010, she married her ex-husband who is a rich man and a supporter of the ruling political party in Bangladesh, Awami League. Her ex-husband had demanded a motorcycle, some gold jewelleries and 500,000 Bangladeshi Taka as dowry. As the 1^st Applicant’s family was poor, her parents could not afford the dowry demanded. After the marriage, the 1^st Applicant and her ex-husband lived with the Applicant’s parents in their home village for about one and half years. Then, they moved to rented accommodation in Khulna.

13.  Because of the dowry issue, her ex-husband vented his anger on the 1^st Applicant by beating her almost every day. In 2012, her ex-husband assaulted her and caused a miscarriage. After she regained her strength, she received medical treatment “not in a formal way” from the hospital she worked before. After that, she lived with her parents for six months. Then she returned to live with her ex-husband. Her ex-husband continued physically abusing her.

14.  To avoid him, the 1^st Applicant left Bangladesh to work in Hong Kong as a foreign domestic helper in March 2014. She returned to Bangladesh for holiday in 2016 and managed to stay away from her ex-husband. She resumed work in Hong Kong on around 21 February 2016. Eventually, she filed divorce against her ex-husband. She could not recall when she did so, but it was after she returned to Bangladesh for holiday in 2016. On one version of her evidence, she delivered the court papers to her ex-husband in person and her ex-husband became furious and beat her with a stick all over her body. On a second version of her evidence, she sent the papers to him by post. She returned to work in Hong Kong on 27 February 2017 until her employment contract was prematurely terminated on 23 March 2017.

15.  Then, she commenced non-refoulement proceedings claiming she was in fear of being killed by her ex-husband because of the dowry issue. She does not believe that the Bangladeshi authorities and police could protect her as her ex-husband had connection with Awami League and the police will side with him. She does not believe internal relocation viable because her ex-husband could locate her throughout Bangladesh through Awami League’s powerful network.

The finding of the Board in the First Decision

16.  The Applicant testified before the Board. The Board found numerous inconsistencies amongst her testimony and evidence in the NCF and record of screening interview. It found her an unreliable and incredible witness and her evidence garbled and inconsistent. It found her ex-husband’s support for the Awami League had no bearing on her claim.

17.  The founding block of her case is her family’s inability to pay dowry to her rich ex-husband. While bragging about her ex-husband’s wealth, landownership and his meanness, it is inexplicable why he did not simply refuse to marry her. If he was such a rich man, it is inexplicable why he chose to live with the 1^st Applicant’s parents for almost one and a half years before moving to rented accommodation in Khulna and not to simply live in one of his properties.

18.  The 1^st Applicant alleged that she bled profusely for 10 to 12 days after the miscarriage and it was only after she regained strength that she sought “informal” medical treatment from the hospital in which she had previously worked. Yet, she was unable to recall even the name of that hospital. She was unable to explain why she did not seek treatment in the first place but waited until she regained her strength and how she could have survived profuse bleeding for 10 to 12 days. The Board found her evidence about the assault and miscarriage absurd and incredible.

19.  The Board found her evidence about delivery of divorce papers to her ex-husband garbled and inconsistent. In her NCF, she said that she gave the papers to her ex-husband in person and was then attacked by him. But in her testimony before the Board, she said she sent the papers to him by regular post, which would make it impossible for her ex-husband to assault her. Her explanation was that she had mixed up with the many various assaults. The Board found her evidence unreliable.

20.  The 1^st Applicant’s fear of her ex-husband is inconsistent with the fact that she moved back to live with him for six months after she had moved out of their marital home and that she stayed with him for a while before she went to work in Hong Kong. During the time they lived together, nothing eventful happened. Her ex-husband never stopped her from taking up employment in Hong Kong. She even stayed in the marital home when she returned to Bangladesh for holidays and ran the risk of encountering her ex-husband. Furthermore, she never sought protection during her employment in Hong Kong. For these reasons, the Board did not accept that she came to Hong Kong to seek protection but merely to take up employment. The Board did not accept her evidence about the assaults by her ex-husband and found even if the assaults existed, all her injuries were minor, including those leading to the miscarriage as she could defer treatment until she had regained her strength after 10 to 12 days.

21.  On the basis of authoritative and credible country of origin information (“COI”), the Board did not accept her claim that the police in Bangladesh was unwilling to help her, as there was no evidence to suggest that she would not have received assistance, if she had so requested. On the contrary, the COI suggested there were objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to improve the effectiveness and monitor the conduct of the police.

22.  The Board also found that as an able-bodied person, the 1^st Applicant could safely relocate to other places in Bangladesh to avoid the perceived risks from her ex-husband, which were localised within her home village.

23.  For Persecution Risk ground, the Board found that her ex-husband was not a state actor. It found the 1^st Applicant’s dispute with him had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle her to protection under this ground. In any event, state protection would be available to avoid this risk of harm.

24.  For BOR 2 Risk ground, the Board found that there was nothing to suggest that the 1^st Applicant would be at risk of being deprived of her life by the Bangladeshi government or that her life would be threatened by a risk targeting her personally.

25.  For BOR 3 Risk ground, the Board did not accept that the 1^st Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest she would be at such risk of such harm if refouled.

26.  For Torture Risk ground, the Board found that there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant. It was also not her case that there was any acquiescence by the state in inflicting the ill-treatment on her or there was any consistent pattern of gross, flagrant or mass violation of human rights in Bangladesh. The claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle her to protection.

27.  Applying the law applicable to non-refoulement protection to the above finding of facts, the Board held that the 1^st Applicant failed to establish the factual basis in support of her claim for protection. It therefore dismissed her appeal and affirmed the decision in the Director’s First Notice.

The 2^nd Applicant’s case under the Second Decision

28.  The 2^nd Applicant’s claim is essentially based on the 1^st Applicant’s as summarised above. As she was born after the 1^st Applicant had come to Hong Kong, the nature of her feared risk of harm is different. In gist, the 1^st Applicant claims that if returned to Bangladesh, the 2^nd Applicant will be harmed or killed by her ex-husband and be discriminated, ill-treated for being born out of an inter-faith marriage. At the hearing of the appeal, the 1^st Applicant made a first time allegation of threat to kill both of them by the elder brother of the 2^nd Applicant’s father.

29.  The 1^st Applicant claimed that her mother informed her on the phone that her ex-husband still went to her mother’s home once a month and threatened to kill her. She said one of her friends who lived in the adjacent village spread the news of the 2^nd Applicant’s birth in Bangladesh. When the ex-husband learned about it he was furious and told her mother that he will kill both Applicants if they came to Bangladesh. The 1^st Applicant also claimed that her own family, relatives and friends did not accept the 2^nd Applicant because she was born outside of wedlock. Her own mother even intimidated that she would inform her ex-husband if the Applicants came back to Bangladesh. The 1^st Applicant also claimed that as her ex-husband is a supporter of the Awami League, he can ask people of the Awami League to locate them anywhere in Bangladesh.

30.  In addition, the 1^st Applicant fears that the 2^nd Applicant will be discriminated and looked down upon because her parents are of different religious faith.

The finding of the Board in the Second Decision

31.  The 1^st Applicant also testified before the Board. She made a first time allegation that the elder brother of the 2^nd Applicant’s father vowed to kill both of them if they go to Bangladesh. She said that the threat was made in Castle Peak Bay Immigration Detention Centre to the 2^nd Applicant’s father in December 2022. When asked why she did not mention this in her NCF, she said she had told her lawyer but the lawyer did not include it because she had no supporting evidence. This is a blatantly false accusation as the NCF was prepared in August 2022 four months before the alleged threat was made.

32.  The 1^st Applicant gave further evidence relating to her own claim (which provided the factual background leading to the 2^nd Applicant’s claim) which she had not disclosed to the previous Board hearing her own appeal. She said she worked as a nursing assistant in two clinics, Biswas Diagnostic Centre and Voyra Diagnostic. From 2008 to 2010, she lived on-site at the Voyra Diagnostic Centre. After her marriage, she and her ex-husband lived with her parents and then moved to rented accommodation from 2012 to 2013 (before the previous Board, she said it was from 2010 to 2012). Her ex-husband used to work at the same two clinics and sometimes lived on-site and sometimes returned home. She said that the domestic violence took place nearly every day at the jungle behind the clinic. This is something she had never said before in any of her evidence.

33.  Her evidence of the assault leading to her miscarriage is inconsistent with her evidence in the NCF, record of screening interview and her testimony before the previous Board. She told this Board that the assault occurred at the Voyra Diagnostic Centre and then she retracted and said it occurred at home (which is consistent with her record of screening interview) and when she started bleeding she went to the Centre six to seven hours later. But her later assertion which explained her presence at the Centre is inconsistent with her statement in the NCF that she only went to the clinic 10 to 12 days after she had regained her strength.

34.  At the screening interview, the 1^st Applicant was asked why her mother would inform her ex-husband about her return to Bangladesh. She replied that her mother would not and it was only her fear that her neighbours would. This is a direct contradiction of her case in her NCF, ie that her maternal family did not find the 2^nd Applicant acceptable and hence would inform her ex-husband of their presence in Bangladesh. In any event, as her mother had passed away, the risk of her mother informing the ex-husband of the Applicants’ return to Bangladesh is illusory.

35.  The Board accepted that the 1^st Applicant and the 2^nd Applicant’s father had not discussed about whether he would also return to Bangladesh together with the Applicants. The Applicants have not made any expressed claim to fear harm based on separation from the 2^nd Applicant’s father. The Board is therefore satisfied that the 2^nd Applicant will not face any real chance of harm based on family separation.

36.  The Board found the 1^st Applicant’s evidence vague, generic, superficial and unpersuasive. Her evidence is internally inconsistent and inherently improbable. It found she was not a credible witness and her evidence unreliable. It does not accept that the 1^st Applicant had suffered any violence from her ex-husband and rejected her evidence about the miscarriage. It agreed independently with the finding of the Board in the First Decision that the 1^st Applicant fabricated her entire non-refoulement claim. It also found on the basis of the COI that adequate state protection available and internal relocation feasible.

37.  In relation to the alleged risk of harm asserted under the 2^nd Applicant’s claim, the Board found them incredible. For reasons as already mentioned in the analysis of the evidence, the Board found that the new threat to kill both Applicants allegedly made by the 2^nd Applicant’s paternal uncle is a false allegation.

38.  The 2^nd Applicant had never met or had direct contact with the 1^st Applicant’s ex-husband. The Board found any adverse interest the ex-husband may have on her would have dissipated over time. It is not satisfied that the Applicants would face any real chance of harm from the ex-husband on their return to Bangladesh now or in the reasonably foreseeable future.

39.  The 1^st Applicant claimed that as the 2^nd Applicant was born outside of wedlock and from parents of different faiths, she will be at risk of discrimination and harm in Bangladesh. However, on her own evidence the 1^st Applicant had undergone a religious marriage ceremony with the 2^nd Applicant’s father before she gave birth to the 2^nd Applicant. The 2^nd Applicant will not be perceived as having been born outside of wedlock.

40.  Furthermore, the COI does not suggest that an illegitimate child born overseas to Bangladeshi parents would be denied access or entitlements to identity documents and basic services. On the contrary, there are laws that prohibit child abuse and neglect, and government agencies and non-governmental organisations that protect children and women who face violence. The COI also suggests that the family law in Bangladesh concerning marriage, divorce and adoption contains separate provisions for Muslims, Hindus and Christians as well as for mixed faith families. While mixed faith marriages were frowned upon, it is becoming more popular in urban areas. Resistance to mixed marriage begins in the family, and if the family accepts a mixed faith marriage, the community will be accommodating. In recent years, there is no credible evidence that children born to parents of mixed faith are specifically targeted for harm or discrimination. The Board is therefore not satisfied that the 2^nd Applicant would be at risk of discrimination from her paternal or maternal family, relatives or friends or the wider community or the authorities or anyone. It is also satisfied that basic services and state protection are available to both Applicants.

41.  Though the COI reported some incidents of communal violence against Hindus, the 1^st Applicant had never faced any such harm before. The Board is therefore not satisfied that there is any real chance of the Applicants facing harm on this basis on their return to Bangladesh.

42.  The Board found the 1^st Applicant’s fear of harm for the 2^nd Applicant, if real, is localized and that as an able-bodied person, she could find gainful employment in other places in Bangladesh and provide support to the 2^nd Applicant upon their return to Bangladesh. On the basis of the COI, the Board is satisfied that the state is both willing and capable of offering effective protection to its citizens and there is no grounds based on well-founded fear for refusing it.

43.  In respect of Persecution Risk ground, the Board found the 1^st Applicant’s fear of persecution for the 2^nd Applicant was not well-founded and that in any event adequate state protection is available.

44.  As for Torture Risk ground, having found the 1^st Applicant incredible, the Board rejected her evidence about the alleged past harm or domestic violence suffered by her. It therefore considered that the 2^nd Applicant will not face any real risk of harm or discrimination from the 1^st Applicant’s ex-husband or anyone upon her return to Bangladesh.

45.  Hence, the Board dismissed the 2^nd Applicant’s appeal against the Director’s second Notice.

Legal principles applicable to judicial review

46.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

47.  The 1^st Applicant did not advance any grounds for judicial review in the amended Form 86. In her supporting affirmation, she advanced the following six specific grounds of review:

(1)  Procedural impropriety: Failure to conduct sufficient due diligence (Paragraph 4 of the affirmation);

(2)  Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI (Paragraph 5 of the affirmation);

(3)  Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 2 and BOR 3 (Paragraph 6 of the affirmation);

(4)  Error/Misdirection in law(Paragraph 7 of the affirmation);

(5)  Procedural Impropriety (Paragraph 8 of the affirmation); and

(6)  Error/Misdirection in law(Paragraph 9 of the affirmation);

Some of these grounds were directed at the Director. For the Applicants’ benefit, the Court assumed that these grounds were also directed at the Board’s two Decisions and considered them on that basis.

48.  These grounds are very familiar to the Court as it has seen similar or even identical grounds in other applications. The particulars appear like a template submission without regard to the actual facts of the case. At the hearing, the Court explored the grounds with the 1^st Applicant. While claiming that the grounds were prepared by her friend on the basis of what she had told him, she could not provide particulars of the individual grounds. The Court nevertheless considered these grounds as far as it could. The Court also bore these grounds in mind in its overall scrutiny of the Board’s Decisions.

(1) - Procedural impropriety: Failure to conduct sufficient due diligence

49.  The particulars of this ground are as follows;

“ Failure to properly apply para 2 of the UN Committee against Torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the [Board] and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement.”

50.  Despite her assurance that the grounds were drafted on the basis of the information provided by her, the Applicant demonstrated complete ignorance of the grounds. She could not give particulars of the reforms and means of relief mentioned. In answer to the Court’s request for particulars, she could only repeat the gist of her case, ie the discrimination against the Hindu minority by the Muslim majority, that the 2^nd Applicant would be at risk of discrimination for being born out of an inter-faith relationship, that she was rejected by both her own maternal family and the family of the 2^nd Applicant’s father, etc. All these matters had been considered by the Board. Insofar as by this ground the Applicants were seeking to challenge the finding of fact by the Board, this is impermissible. The reference to reforms and means of relief suggest that this ground was about country of origin information. If the “due diligence” was intended to mean the duty to make sufficient enquiries into the COI, this ground overlaps with Ground (2).

Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI

51.  The particulars of this ground are as follows:

“ [The Board’s] Failure to consider that I would face serious risk from my enemies who will harm me because of my political and statistical view which consider a serious matter for which he would definitely harm me upon refoulement.”

52.  The complaint is about the Board’s failure to conduct sufficient enquiry into the relevant COI before reaching its Decisions in relation to the Applicants’ risk. The 1^st Applicant was unable to give, not even in broad terms, the type of COI which she alleged the Board should have conducted enquiries into or in specific terms the COI which she alleged the Board had failed to conduct enquiries into or had made insufficient enquiries.

53.  The Board had specifically quoted and referred to the COI from authoritative and credible sources, such as DFAT Country Information Report Bangladesh published by the Department of Foreign Affairs and Trade (“DFAT”) of the Australian government, Country Policy and Information Note Bangladesh: Religious minorities and atheists published by the United Kingdom Home Office, Country Report on Human Rights Practices for Bangladesh 2015 and 2022 Report on International Religious Freedom: Bangladesh published by the Department of State of the United States, and World Factbook published by the United States Central Intelligence Agency. The Board had weighed and considered those COI before reaching its conclusion in the two Decisions as to the level of risk which the Applicants will likely face on their return to Bangladesh. It considered the COI and gave detailed reasons for its assessment of the Applicants’ risks in paragraphs 84 to 92 of the Second Decision and in Paragraphs 71 to 78 of the First Decision. Its findings are finding of fact solely within the province of the Board and this Court could find no vitiating elements which justify a review of the Board’s Decisions.

54.  Furthermore, the Applicants’ claims did not involve any risk caused by their different political views or “statistical view”. This ground is obviously a template ground which has no bearing to the facts and circumstances of the Applicants’ case. There is no substance in this ground.

tGround (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 2 and BOR 3 risk

55.  The particulars of this ground are as follows:

“ Failure to reasons for assessment of Lack of BOR2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk.”

56.  Other than reiterating the gist of their case and her disagreement with the Board’s two Decisions, the 1^st Applicant could not advance any argument to support her complaint about the Board’s failure to give reasons for its assessment of their BOR 2 and BOR 3 risk. On the evidence, there is nothing to suggest there is a real risk that the Applicants will be arbitrarily deprived of their lives[6]. As analysed in the preceding sections, the Board had given full reasons for its findings on the 1^st Applicant’s credibility, the reliability of her evidence and its findings in relation to the four applicable grounds, including BOR 2 Risk and BOR 3 Risk. There is no basis to interfere with the Board’s finding in respect of BOR 2 Risk and BOR 3 Risk ground and indeed in respect of the other two Risks as well.

Ground (4) - Error/Misdirection in law

57.  The particulars of this ground are as follows:

“ Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me.”

The Applicants did not identify the misdirection complained of. The issue of psychological strain as a form of mental or psychological ill-treatment had not been raised by the Applicant before the Director or the Board. In answer to the Court’s question, the 1^st Applicant explained that she suffered psychological stress arising from her fear of her ex-husband. Thus, it is not the 1^st Applicant’s case that she suffered mental ill-treatment from her ex-husband. As she had never raised the issue of psychological strain, it was not a matter which the Board was required to take into account. The Board had adequately considered the issue of threat and physical ill-treatment from her ex-husband and rejected her evidence as incredible. Thus, even if she had raised the issue of psychological strain, her claim would fall along with the Board’s rejection of her evidence about threat and physical ill-treatment on which the psychological strain arose. There is no substance in this ground.

Ground (5) - Procedural Impropriety

58.  The particulars of this ground are as follows:

“ The [Board] Failure to consider our fear that my enemies still fear for me, I could no return to my country in this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country.”

59.  This is a direct challenge of the Board’s finding of fact, which is not permissible, save for errors of law, procedural unfairness, or irrationality in the Decision. This Court’s finding in relation to Grounds (1) and (2) is a full answer to this complaint[7].

Ground (6) - Error/Misdirection in law

60.  The particulars of this ground are as follows:

“ No sufficient basis to conclude that I and my family members would not be at risk of being subjected to torture and or / CIDTP upon refoulement.”

61.  This is again a challenge against the Board’s finding of fact which is not permissible.

Overall scrutiny

62.  Having rigorously examined the two Decisions, the papers and the evidence with anxious scrutiny, the Court is satisfied that in both Decisions the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues raised by the Applicants’ claims and observed a very high standard of fairness.

63.  In both Decisions, the Board found the 1^st Applicant’s evidence was not credible or reliable. It rejected her evidence. Thus, the 1^st Applicant had failed to prove the factual basis in support of the Applicants’ claim to non-refoulement protection. The Board found on the basis of authoritative and credible COI that adequate state protection was available in Bangladesh and there was no reason for the Applicants not to seek such protection in their home country. It found the Applicants could also avoid the alleged risk of harm by internal relocation. Then, applying the law applicable to non-refoulement protection to these finding of facts, the Board came to the conclusion that the Applicants were not entitled to protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decisions or procedural unfairness at any stage of the non-refoulement proceedings. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. The Decisions are utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

64.  The Applicant’s application for leave to apply for judicial review is therefore refused.

65.  The Applicants were granted leave to amend their application for leave to apply for judicial review and to file the amended leave application out of time, but the leave application as amended is refused.

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