AKTER KAKALI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]
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HCAL 1066/2021
[2024] HKCFI 2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1066 OF 2021
| BETWEEN | ||
| Akter Kakali | Applicant | |
| and | ||
| Torture Claims Appeal Board | 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:
consideration of the documents only; or consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review be refused.
Observations for the Applicant:
1. The Applicant is a 35-year-old national of Bangladesh who last arrived in Hong Kong on 6 August 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 February 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 September 2019, she did not depart and instead overstayed, and was arrested by the Immigration Department on 17 January 2020 for which she 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 over their domestic disputes.
2. The Applicant was born and raised in Satpara, Dashpara, Daudkandi, Comilla, Bangladesh. After leaving school she married her husband and raised a family with 3 children in her home district.
3. However, soon the Applicant discovered that her husband was an alcoholic with a hot temper, and when drunk would abuse and hit her and sometimes even their children at will, causing them much injuries and distress.
4. During one particularly violent beating of the Applicant by her husband which scared their youngest son who was screaming and crying that her husband became annoyed and grabbed the son and threw him at the wall which injured his head that the Applicant had to rush him to the hospital where the son subsequently died from his injuries.
5. Thereafter the Applicant reported the matter to the police that her husband had caused the death of their son, but which her husband denied and instead blamed her for the death after being discovered by him of having stolen money from him, and for which he swore to kill her.
6. Fearing for her life the Applicant therefore moved back to her parents’ home with the 2 elder children, and made plans to leave her husband by applying to work in Hong Kong as a foreign domestic helper, which she eventually did in October 2014 when she departed Bangladesh for Hong Kong to start her first employment, during which she had been told by her parents that her husband had come looking for her with threats that if she failed to return to his home, he would kill her, and so after her last employment was prematurely terminated on 29 September 2019, she was afraid to return to Bangladesh and overstayed in Hong Kong, and upon her subsequent arrest by the Immigration Department she then raised her non-refoulement claim for protection, for which she completed a
Non-refoulement Claim Form (“NCF”) on 22 September 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).7. By a Notice of Decision dated 23 November 2020 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”).
8. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of harm from her husband as she perceived is real and foreseeable upon her return to Bangladesh 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 him, that in any event it was a private domestic dispute between the 2 of them 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 162 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.
9. On 4 December 2020 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 30 April 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 July 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over their domestic disputes that caused her to overstay in Hong Kong to seek protection, that in any event even if such risk were real that there was no reliable evidence of any real intention of her husband to seriously harm or kill her over what were essentially their private domestic disputes between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.
11. On 28 July 2021 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’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 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 hearsays;
(7) That the Adjudicator had relied on some cases which are outdated considering the dramatic changes with the lack of credible source of information had resulted in the making of groundless speculations; and
(8) That in spite of the Applicant’s problems in her home country are very severe and that she had already submitted all the documents in support of her claim but which the Board did not care and disappointed the Applicant.
12. 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 unreasonable or irrational or that the Board unlawfully fetter its discretion or that the Adjudicator had acted procedurally unfair or unreasonable, 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 were not officially recognized or were hearsays or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in her affirmation or at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.
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 NupurMst v Director of Immigration[2018] HKCA 524.
14. In the Applicant’s case, the Board rejected her claim on its adverse findings as to her credibility for the thorough and detailed analysis and reasoning set out in 41 – 88 of its decision with the benefit of hearing her in her oral evidence and her answers raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or 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.
15. Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
16. 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.
17. 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.
| (Chung Lai Fan, Christine) 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
Form CALL-1