AKTER SHAHIDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1030/2023

[2025] HKCFI 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1030 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Bangladesh who arrived in Hong Kong on 10 December 2020 with permission to work as a foreign domestic helper until the expiration of her employment on 20 May 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 August 2021, she did not depart and instead overstayed, and on 15 February 2022 she surrendered to the Immigration Department but then thereafter disappeared and failed to report to the Department, and was arrested 3 months later on 30 May 2022 for breaching her conditions of stay and was subsequently convicted and sentenced to prison for 15 months, during which 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 abusive husband for having an affair with another man in Hong Kong.

2.  The Applicant was born and raised in Chikmaran Bazar, Kaktai, Chittagong, Gazipur, Bangladesh. After leaving school she married her husband and raised a family with a daughter in her husband’s home in Begum Pur, District Gazipur.

3.  In 2015 the Applicant started to work in the nearby hospital as a nurse, but as her husband had throughout the marriage been abusive towards her and even beat her by slapping and punching her at will, and to avoid such further abuses and to stay away from her husband, the Applicant in 2020 decided to apply to work abroad as a foreign domestic helper in Hong Kong, which she did on 9 December 2020 when she departed Bangladesh for Hong Kong to start her employment.

4.  However, after her employment was prematurely terminated on 26 August 2021, the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong, during which she in December 2021 met another Bangladeshi man and subsequently formed a relationship with him, but in July 2022 when her husband was told of her affair by a fellow Bangladeshi foreign domestic helper, he telephoned the Applicant and threatened to kill her when she returned to Bangladesh, and so the Applicant raised her non-refoulement claim for protection to the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 August 2022 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of her claim of threats from her husband over her alleged affair in Hong Kong due to material inconsistencies contradictions and confusions in her statements which was further undermined by her failure to raise her claim until months later and only after her arrest, that even if her account were true that the level of risk of harm from her husband upon her return to Bangladesh was assessed 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 him to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic dispute between her and her husband 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 165 million people spread across a vast territory of more than 148,000 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.

7.  On 13 September 2022 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 24 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 May 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first opportunity in Hong Kong until more than 8 months after her overstay and only upon her arrest and imprisonment, and that in any event there was no reliable evidence of any intention or reason for her husband to harm or kill her given the rejection of her claim that her husband had learned of her alleged relationship with another man in Hong Kong that it concluded that the Applicant has failed to establish that she will face any real risk of harm from anyone upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 27 June 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  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;

(2)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

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

(5)  That in dismissing the Applicant’s appeal there is no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the ground under consideration being 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 hearsay or outdated with the lack of credible source of information that resulted in making groundless speculation.

10.  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 information relied on were not officially recognized or were simply hearsay or outdated, or how did the Board fail to make proper enquiry or analysis of the Applicant’s claim. 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 her intended challenge.

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 for the thorough and detailed analysis and reasoning set out in 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 findings of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, 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 all 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