KABIR TANIA v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 973/2018 [2020] HKCFI 2193 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 973 of 2018 BETWEEN Kabir Tania 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 refused. Observations for the Applicant: The Applicant is a 35-year-old national of Bangladesh who arrived in Hong Kong on 6 February 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her contract was prematurely terminated on 28 February 2016, she did not depart and instead overstayed in Hong Kong, and on 21 March 2016 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 husband’s creditors for failing to repay his loans. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in Faridpur District, Bangladesh. After leaving school she married her husband and moved to live with him in Dhalhara, Chandpur, Magura District where she gave birth to their son. Her husband ran a brick-kiln business in his home district, and had borrowed loans from three fellow villagers in the Applicant’s name for his business development, but later when he suffered from ill-health and had to close down his business, and in order to support the family and to help him to repay his loans, the Applicant went to work as a domestic helper first in Singapore and later in Hong Kong by remitting money from her monthly salary to him in Bangladesh, but when her last employment contract was prematurely terminated in 2016, and when she heard that those creditors had threatened to harm her, she became concerned for her own safety and therefore overstayed in Hong Kong and later raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. By a Notice of Decision dated 8 December 2016 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”). In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of her being harmed or killed by her husband’s creditors upon her return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were private personal monetary disputes 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 156 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 Bangladesh away from her home district in large cities such as Dhaka where it would be difficult if not impossible for those creditors to locate her. The Applicant then 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 20 April 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 23 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board accepted that the Applicant’s claim of problems over loans with her husband’s creditors but found no reliable evidence of threats from those creditors towards her, and that in any event in the absence of any official involvement that state/police protection would be available to her if needed as well as reasonable internal relocation within Bangladesh for her to move safely to other area away from her home district without any risk of being located by those creditors that her claim for non-refoulement protection failed on all applicable grounds. On 30 May 2018 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) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement; (2) that the adjudicator acted in a procedurally unfair manner in dealing with her appeal; (3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; (4) that the Board failed to meet the greater care and duty owed to a self-represented claimant; (5) that the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated resulting in groundless speculation that it would be safe for her to return to her home country; and (6) that the hearing bundle was given to her only a few days prior to her appeal hearing before the Board with the majority of the documents in English without translation thereby given her insufficient time to prepare for her appeal and to find reasonably affordable interpreter to assist her in her appeal to the Board which was procedurally unfair. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was its decision unreasonable or irrational in the public law sense, 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 hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such 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 with sufficiently relevant particulars or elaborations, I do not find any of them reasonably arguable for her intended challenge. 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. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board. Furthermore, the fact 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. 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. 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. Dated the 7th day of September 2020. (NG Hang-yin) 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 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 7th September 2020 Kabir Tania 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 7th September 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5554/16/12/201/B700 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2613/16 (Formerly RBCZ 12444/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1