KHATUN MARIAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1349/2019

[2024] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1349 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 21 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 21 August 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 25 March 2015 she did not depart and instead overstayed, and more than one year later on 11 May 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Karogram, Sarishabari, Diet, Bangladesh. After leaving school she worked in various jobs, married her husband as arranged by their families, and raised a family with a son in her home village.

3.  During their marriage the Applicant however discovered that her husband had a bad temper and would often be abusive towards her by pushing and slapping her around at will.

4.  In about 2010 her husband forced her to ask for money and land from her parents, and when the Applicant was unable to do so, he would threaten and beat her. Eventually in 2011 the Applicant found herself unable to tolerate her husband’s abuses, and fled from their matrimonial to hide in Jamalpur, during which her husband demanded that she returned immediately to their home or else he would kill her.

5.  On one occasion in 2013 the Applicant saw her husband together with some men in Jamalpur, and so she fled to Dhaka, and as she felt it was no longer safe to remain in Bangladesh, she therefore made arrangements to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she eventually did on 21 August 2014 when she departed for Hong Kong for her employment, but when it was subsequently terminated in March 2015, she was afraid to return to Bangladesh, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 May 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 15 June 2018 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 abusive husband upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than to press her to return to their home, that in any event it was a private domestic dispute between the 2 of them 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 157 million people spread across a vast territory of more than 130,000 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 her husband to locate her.

8.  On 27 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 23 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of domestic violence or harm from her abusive husband that caused her to overstay in Hong Kong to seek protection, but as it was a private domestic dispute between the 2 of them without any official involvement that state or police protection in large cities would be available to the Applicant upon her return to Bangladesh by relocating safely to those large cities away from her home district and without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 20 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

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

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

(3)  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;

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

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in groundless speculation that it would be safe for the Applicant to return to her home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s claim;

(7)  That it was unfair for the Board to assess the Applicant’s BOR 2 claim without any screening interview; and

(8)  That the hearing bundle was provided to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English thereby given her insufficient time and opportunity to prepare for the appeal given her limited skills in English that she was confused of what was happening at the hearing which was procedurally unfair to the Applicant.

11.  These are however mostly just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 just hearsays or outdated, while her complaint of not being screened for her BOR 2 claim is clearly factually incorrect as her claim under all the applicable grounds including BOR 2 was properly screened in an oral hearing which she attended before the Board and assisted by an interpreter. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of her application, I do not find any of them reasonably arguable for his intended challenge.

12.  As for her complaint of being provided the hearing bundle shortly before her appeal hearing before the Board with the majority of the documents in English thereby giving her insufficient time to prepare for her appeal before the Board, the Applicant did not produce any documentary evidence such as the covering letter or envelope that contained the hearing bundle as proof, but even if the hearing bundle was indeed late, most of the documents had in fact earlier already been provided to the Applicant while she was still legally represented, while her NCF was also completed on her own instructions by her lawyer, and that she never raised any issue over the hearing bundle during her appeal hearing before the Board when she was able to make her representations for her claim assisted by an interpreter without any difficulty. In the circumstances I do not find anything amiss arising from the hearing bundle or any merits in this complaint of the Applicant either.

13.  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.

14.  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 risk of harm in her claim if real is a localized one 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.

15.  In the premises, and 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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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