HCAL 773/2022
[2023] HKCFI 352
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 773 of 2022
| BETWEEN | | |
| Akter Rujina | 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:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 34-year-old national of Bangladesh who arrived in Hong Kong on 4 September 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 September 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 April 2019, and after her extended stay expired on 2 October 2019, she did not depart and instead overstayed, and almost one year later on 25 August 2020 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her separated husband for failing to pay him money for his use. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Shymali Bagh, Golachipa, Potua Khali, Bangladesh where she married her husband and raised a family with a son.
3. During their marriage her husband frequently demanded that she asked money from her brother for his use, and whenever she was unable to do so, he would beat her with wooden stick causing her cuts and bruises all over her body.
4. In 2012 her husband drove her out of their home that she went to reside with her brother, but as her husband continued to demand money from her, the Applicant in 2016 went to Saudi Arabia to work as a domestic servant.
5. In 2018 the Applicant returned to her home in Bangladesh, but when her husband still threatened her for money, she on 3 September 2018 departed Bangladesh for Hong Kong to work as a foreign domestic helper, but after her employment contract was terminated, 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 6 May 2021 and attended screening interview before the Immigration Department with legal representation.
6. By a Notice of Decision dated 22 July 2021 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 separated 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 just to press her for money, that in any even 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 162 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 part of the country away from her home district in large cities such as Chittagong where it would be difficult if not impossible for her husband to locate her.
8. On 2 August 2021 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 13 May 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 July 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board accepted the Applicant’s claim of fear of harm from her separated husband over their private domestic disputes over money but found no evidence of any real intention of him to seriously harm her, and that in any event in the absence of any official involvement that state or police protection would be available to her upon her return to Bangladesh if necessary as well as reasonable internal relocation for her to move safely to other part 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.
10. On 16 August 2022 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 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 the Adjudicator failed to interact with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or to turn his mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2 Risk;
(6) That the Board significantly relied on source of news not officially recognized or were simply hearsays;
(7) That the Adjudicator relied on COI which were outdated and with the lack of credible source of information that resulted in making groundless speculations; and
(8) That the Adjudicator failed to consider that the Applicant’s problems in her home country were very severe or the documents submitted by the Applicant in support of her claim.
11. These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any 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 did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what information or COI relied on by the Board that were not officially recognized or were hearsays or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.
12. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
13. In the Applicant’s case, 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 her 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. 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. Furthermore, it is of note that the Applicant on 27 September 2022 filed an affirmation requesting to withdraw her application as she no longer has any problem returning to her home country, but some 2 months later on 9 December 2022 she requested to continue with her application as her claimed problem still exists in her country that again she cannot return.
16. In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse her leave application.
Dated the 8th day of February 2023
| | (TAM Kam-man)
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
Notesfor the Applicant:
If leave has been granted, the Applicant or his 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 8 February 2023
Akter Rujina
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 8 February 2023
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 18417/21/8/5/B2287
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 613/21 (Formerly RBCZ/212/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1