CHAKMA MOUSUMI v. DIRECTOR OF IMMIGRATION

HCAL 2095/2018

[2020] HKCFI 1935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2095 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Bangladesh who arrived in Hong Kong on 21 June 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 21 June 2015 when she did not depart and instead overstayed until July 2016 when she was arrested by police for theft, and while being detained at the correctional institution, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of rival political party Awami League (“AL”) and/or by the Khiang tribal people over their land dispute with her father.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Bornorupa, Rangamati District, Chittagong, Bangladesh as a Chakma ethnic minority.  After leaving school she worked as a caretaker in a guesthouse in her home village, and joined the female group of the political party Parbatya Chattagram Jana Samhati Samiti (“PCJSS”) fighting for the rights of the indigenous tribes in her home district, and later she also joined her husband to become a supporter of the national political party Bangladesh Nationalist Party (“BNP”).

3.  Her father had purchased a piece of land from the government, but discovered that some Khiang tribal people were occupying the land illegally, and when he tried to drive them away, the Khiang people came to his house with weapons to threaten to kill him and his family including the Applicant until the village head intervened to suggest that their dispute be dealt with through legal proceedings before the Khiang people left without harming anyone.

4.  Later in 2007 the Applicant’s husband was involved in a violent conflict between BNP supporters and the AL supporters in the Rangamati District and was subsequently arrested by police after the AL supporters had made a false charge against him, and during his detention at the police station he was tortured but was eventually acquitted by the court.

5.  Thereafter the Applicant had been constantly harassed and threatened by the local AL supporters that in 2013 she first fled to Bilaichori to take shelter in her aunt’s place, and then to Dhaka to stay with her cousin, but when she heard that those AL supporters were looking for her everywhere, she felt it was no longer safe to remain in Bangladesh, and so on 21 June 2013 she departed for Hong Kong to work as a foreign domestic helper, but after the expiration of her employment contract on 21 June 2015 and when she was unable to find another employment, she did not depart and instead overstayed in Hong Kong until July 2016 when she was arrested by police for theft, and subsequently       raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 13 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 24 May 2017 the Director of Immigration (“the 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 those local AL supporters and/or the Khiang tribal people upon her return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention from those AL supporters or the Khiang people to harm or kill her during all those years prior to her departure from Bangladesh, that in the absence of 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 show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 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 part of Bangladesh away from her home district in large cities such as Dhaka where she had stayed before without incidents and where it would be difficult if not impossible for her perceived enemies to locate her.

8.  On 2 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 31 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 10 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found serious inconsistencies discrepancies and conflicts in the Applicant’s evidence of her alleged political involvements and activities or of the threats received from her perceived enemies that it doubted the credibility of her claim which was further undermined by her failure to raise her claim upon her arrival in Hong Kong until much later when she was arrested by the police that it did not accept her claim of fear of harm from those AL supporters or the Khiang people, and that in any event such risks would be further reduced or negated by state/police protection as well as reasonable internal relocation within Bangladesh for the Applicant to move safely to other area away from her home district without risk of being located by her perceived enemies that her claim for non-refoulement protection failed on all applicable grounds.      

10.  On 3 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date other than a regurgitation of her claim that she had a lot of problems in her home country and that if she were to return to Bangladesh she would be killed but without putting forward any proper ground for her intended challenge, nor did she attend the scheduled hearing of her application.

11.  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.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 74 – 114 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.     

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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