|
HCAL 1617/2019
[2021] HKCFI 1404
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1617 OF 2019
BETWEEN
|
Khatun Fatema |
Applicant |
|
and |
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant first entered Hong Kong on 30/10/2015 under a contract for a domestic helper for 2 years. Her contract was terminated early. She overstayed since 2/12/2015. She surrendered to the Immigration Department on 31/3/2016. She then lodged the non-refoulement claim in this case on 24/3/2017. [1]
Background [2]
2. The applicant was born on 3/2/1988 in Satkhira, Khulna Division, Bangladesh. She attained class 9 level. She was divorced with a daughter who was in Bangladesh. She had worked as a domestic helper in Hong Kong for about a month.
3. In early 2012, she had a relationship with Ripon (R). One day in June, R took her to a hotel room. R used chloroform to make her unconscious and raped her repeatedly. The next day, she managed to return home. She did not tell her mother about it. Subsequently, she contacted R and threatened to commit suicide if R did not marry her. Two months later R married her.
4. After the marriage, she discovered that R had already married. He was involved in various kinds of illegal activities [3]. He was a member of the Awami League (AL). He had a group of gangster followers.
5. She lived in a house rented by R at Satkhira city. R was always drunk when he returned home. He assaulted her with bare hands and kicks. He even sexually assaulted her. She needed medical treatment and recovered in a week. She did not tell anyone about her situation as she was pregnant.
6. When she was five-month-pregnant in October 2012, she was raped by the friends of R in her house. They were drunk at that time. R even forced her to have sex with his friends.
7. R threatened to kill her if she told anyone about this incident. She was in fear and fled to her mother’s house immediately. She had medical treatment in a private clinic. She had 3 stitches to her vagina to prevent miscarriage. She had injections for the bruises. She took a long time to recover. She finally gave birth to her daughter in March 2013. Eventually, she went back to the matrimonial home with R. She had nowhere to go.
8. Around August 2013, on R’s proposal, she agreed to work in a garment factory in Dhaka. It turned out to be a trap. R had sold her for $5,000 Takas as a sex slave. However, she was not locked up. She managed to escape with the assistance of R’s friend. She returned to her house in Satkhira. She had not worked as a prostitute in Dhaka.
9. R assaulted her severely when he discovered that she had escaped. A friend took her to a hospital afterwards. CT scan revealed that she had a blood clot in her head. She was hospitalized for 2 days. She was given some ointment and recovered in 25 days. She stayed at her mother’s house after discharged from the hospital. She refused to return home despite R’s demand.
10. By July 2015, her mother paid $180,000 Takas as agent fee to arrange her to Hong Kong as a domestic helper. She received training for 3 months before leaving for Hong Kong on 30/10/2015.
11. In Hong Kong, she missed her daughter and cried a lot. Her employer terminated the contract. She stayed with a friend until she surrendered to the Immigration Department on 31/3/2016.She feared that R would ill-treat or kill her. She therefore overstayed in Hong Kong.
12. She had reported to the police about R. They did not take any action. She thought the police would not take action against AL members. She could not afford a bribe. She did not know other complaint channels. The NGO could not assist her.
13. She had no resources to relocate to Dhaka or Chittagong. The AL were powerful. They had a strong network. R would be able to locate her.
14. Before she left Bangladesh, she had served divorce papers through the court to R but he refused to sign.
15. Recently, her mother told her on the phone that R asked about her. Her mother told her not to return. She was afraid she might be a victim of human trafficking.
The decision of the Director
16. The Director found that there was low risk of ill-treatment by R. The Director based on the following reasons:[4]
a. The problem between R and the applicant was domestic violence. There was no evidence that R was acting in any official capacity. There was no reason the AL would support R for his conduct using party resources. The State had not consented, instigated or acquiesced the conduct of R.
b. She was able to escape from home and stayed with her mother after she was raped by R’s friend in October 2012. However, she chose to return home after giving birth to her daughter in March 2013. It was also unreasonable for her to return home after she escaped from the sex-slave-trap in Dhaka around August 2013. This behaviour was inconsistent with her assertion that she was in fear of R.
c. She was assaulted by R after she returned home from the sex-slave-trap in Dhaka around August 2013. R had plenty of chances to kill her but he did not. This indicated that R had no real intention to kill.
d. After she was discharged from the hospital, she stayed safely with her mother and refused to return home despite R’s demand. It was sometime around the end of 2013 [5]. She stayed at her mother’s house for about 2 years before leaving for Hong Kong in October 2015. It was strange that R did nothing to take her home.
e. She was safe while having training for 3 months in Bogra. R did not harm her.
f. She speculated that the police did not assist her. There was no evidence to support that this was a general situation in Bangladesh. In fact, she had not complain against this alleged misconduct. There was no evidence that the police refused to assist or condone the conduct of R.
g. Having considered various COI, the Director acknowledged that there were incidents of politically motivated harassment on members of BNP by AL. The Police was generally inefficient, corrupt and in favour of AL. Women generally were reluctant to use the court system to seek redress. However, there were programs to tackle police inefficiency and corruption (PRP & PIO [6]). There were news reports that the police had been taking action against AL leaders and police officers when they committed offences. There were complaint channels to higher authorities if a police officer refuse to assist. The Constitution stated that all citizens were entitled to equal protection under the law. The government had taken measures to tackle domestic violence and to improve victim support services such as shelter homes and financial support. The Director concluded that there was reasonable State protection.
h. The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country of 130,000 km2 and the population was over 157 million. Given her age and background, she should be able to relocate to cities like Dhaka and Chittagong. It would be very difficult for R to locate her.
17. The Director rejected her claim on 22/2/2018.[7]
The decision of TCAB
18. The applicant attended a hearing on 27/2/2019 before the TCAB. The adjudicator pointed out the following aspects which supported his conclusion that the appellant’s fear was unlikely to materialize: [8]
a. R wanted the applicant to earn money for him as a prostitute. The applicant stayed with her mother for 2 years. R did not take any action. The threat to kill was not intended.
b. The applicant refused to go back to R despite his demand. Her asserted fear of R and his gangsters was unreal. Their problem was an ordinary case of domestic violence.
c. From the evidence, R did not have the intention to carry out his threat. The harm caused to the applicant did not amount to a minimum level of severity. This case did not involve politics; members of AL would not receive any immunity according to the COI.
d. The applicant had not complained about police inaction. According to the COI, there were channels for complaint. In addition, there was reasonable State protection. Her assertion that the police were corrupt and failed to take action failed.
e. This was a case of domestic violence without any political interference. There was sufficient State protection available to the applicant.
f. The torture as asserted by the applicant was not within the definition under s.37U of the Immigration Ordinance. R did not act under any official capacity.
g. The applicant did not suffer ill-treatment because of any of the Convention reasons. There was no persecution.
h. The adjudicator found that it was not unreasonably harsh for the applicant to relocate to Bogra, Dhaka or Chittagong. It was pure speculation that R could locate her.
19. The adjudicator rejected the applicant’s claim on all applicable grounds on 6/6/2019.[9]
Judicial review
20. The applicant filed the leave application for judicial review on 13/6/2019. In her affirmation in support, she made no specific complaint about the TCAB.
21. This court fixed a hearing on 23/2/2021. The applicant confirmed that she had nothing to update. She had no complaint against the TCAB. Her daughter lived with her mother in Bangladesh. They were safe. She had not contacted R since she came to Hong Kong.
22. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
23. The adjudicator had analysed her evidence in detail. There is some evidence which seriously weaken her claim. I agree with the findings of the adjudicator that her fear of R is not genuine.
24. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
25. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 20th day of May 2021
| |
(Mike Mak) |
| |
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
|
Sent to the Applicant
on 20 May 2021
Khatun Fatema
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 May 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10628/18/3/80/B1187
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3557/17
(Formerly RBCZ 10675/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 22/2/2018, §7.
[2] Decision of the Director dated 22/2/2018, §§6.1—6.63.
[3] Taking drugs, extortion, theft etc.
[4] Decision of the Director dated 22/2/2018, §§12—24.
[5] She was misled by R and went to work in a factory in Dhaka around August 2013. She managed to escaped home. She was assaulted by R. She was hospitalized for 2 days. She took 25 days to recover.
[6] Police Reform Programme and Police Internal Oversight.
[7] Decision of the Director dated22/2/2018, §§25—39.
[8] Decision of the TCAB dated 6/6/2019, §§59—67.
[9] Decision of the TCAB dated 6/6/2019, §§68—117.
|