KHATUN SHARIFA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 2392/2024 [2025] HKCFI 989 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2392 of 2024 BETWEEN Khatun Sharifa 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; consideration of documents only; or consideration of documents and oral submissions by the Applicant in open court; Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction This is the Applicant’s application by Form 86 filed on 6 December 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 30 ‍October 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 July 2024 (the “Notice”), refusing her non-refoulement application. Background The Applicant is a Bangladeshi national. She last entered Hong Kong on 19 ‍February 2023 to take up employment as a foreign domestic helper. After her employment was prematurely terminated, she was permitted to stay in Hong Kong until 17 October 2023. On 4 September 2023, she was arrested by the Immigration Department for the offences of using a forged identity card, breach of condition of stay, and possession of forged identity card and subsequently sentenced to 15 months’ imprisonment. While serving her sentence, she made a non-refoulement claim on 17 March 2024. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk; BOR 3 Risk; Persecution Risk; and BOR 2 Risk. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. The Applicant’s case The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to Bangladesh, she will be harmed or killed by Rabiul Dhali (“Dhali”) and his Awami League (“AL”) associates, as she refused to marry him. The Applicant, now aged 37, was born in Koira, Khulna, Bangladesh. She is single. She had received 12 years’ formal education and had about nine years’ working experience as a domestic helper in Hong Kong. She claimed she is a supporter of the Jamaat-e-Islami political party (“JEI”) and her father was a president of the JEI in Khulna district between 2006 and 2009. In January 2009, Dhali, who is an AL member, asked her to marry him. She refused. In 2009, the AL came to power. They accused JEI members of violating the national law. In December 2009, some unknown AL members visited her father’s home to look for her father. Her father was not at home. They vandalised his home and assaulted her mother and brother. Upon returning home from school, the Applicant took them to Koira Hospital for treatment. She did not report the incident to the police as she believed they would arrest JEI members. After sending her to live with her uncle in Hogla, her parents fled with her brother. The Applicant did not know their whereabouts. Nothing eventful happened until 2013. In February 2013, the Applicant met Dhali at an examination centre in Koira. He asked her about her parents’ whereabouts. She said that she did not know. Before leaving, Dhali accused her of lying and said he would find out. After learning about her encounter with Dhali, her uncle became wary that his family would be in danger if she continued to stay at his home. He therefore sent her to a domestic helper training centre in Bogra in March 2013. After eight months’ training, she came to work in Hong Kong as a foreign domestic helper in 2014. The Applicant returned to her uncle’s home for vacation in 2022. In the first week of February 2023, Dhali and five people visited her uncle’s house and asked her to marry him. She refused. He then threatened to force her to marry him and asked her to think of his marriage proposal again. In the following week, her uncle had a stroke and died. She then returned to work in Hong Kong. While in Hong Kong, she learnt from her aunt that Dhali went to her uncle’s home and asked her aunt to bring her back to Bangladesh. Dhali also constantly sent her messages via Facebook, threatening to kill her if she refused to marry him. In February 2023, she closed her Facebook account, and she did not receive any more messages from him thereafter. She claims that state protection was not available because the police would not protect her for being a JEI member. She does not believe internal relocation viable, as it is not safe being a single woman in Bangladesh. The finding of the Board The Applicant testified before the Board. She demonstrated a slim knowledge of the JEI – she did not know the name of its founder and even said the JEI is the same as the Bangladesh Nationalist Party. The Board considered her knowledge of the JEI inconsistent with her claim that she had been a JEI supporter for years and had been facing harm and threat from the AL due to her allegiance. The Board did not find her claim of affiliation with JEI credible. Even accepting that she was a JEI supporter, the Board considered her description about her duties with the JEI showed that she was merely a grass-root level supporter. There was no evidence to show she had been discriminated or ill-treated by the government because of her JEI allegiance. The evidence revealed that she was simply untouched at all material times by the AL. In the absence of any evidence suggesting that she was a prominent JEI figure, the Board found it disproportionate, implausible and illogical for AL members to persecute her, simply because she supported the JEI. The Applicant told the Board that she is in fear of returning to Bangladesh solely because of Dhali’s demand that she marry him. On the evidence, the Board found that if Dhali really had an intense urge or real intention to harm or kill her if his marriage proposal was not accepted, he would have done so already, given there were lots of opportunities for him to do so in the past. On the contrary, the Applicant remained fine, unharmed and untouched at all throughout those three encounters over a span of 14 ‍years. She suffered no physical injuries. There was no evidence that she suffered mental injuries. Hence, the Board found her fear was just her mere speculation. It was not persuaded that there is a real and personal chance that the Applicant would suffer serious harm from Dhali or his AL associates. In any event, the Board found that the allegations of the threats from Dhali were private and personal in nature, which did not have a nexus to any of the grounds for non-refoulement protection under the USM. It was the Applicant’s evidence that she had effectively and efficiently cut ties with Dhali by closing her Facebook account, and had not heard from him thereafter. There was also no evidence to suggest that Dhali was actively pursuing her or had the means and ability to locate her after she had closed her Facebook account. The Board therefore found, taking her case to the highest, the real cause for Dhali to exert threat on her was to pressurize her to marry him. As such, the Board was not persuaded that Dhali or the AL people had any real intention to cause serious harm on her. The Board found that Dhali or his AL associates were not public officials or state actors when uttering the threats to the Applicant and that the physical or mental suffering suffered by her did not attain the minimum level of severity as to qualify for protection under any of the proscribed risks under the USM. On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Bangladesh. However, the same COI also suggested that there are objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. It therefore found that reasonable state protection is available to the Applicant in Bangladesh. There was no evidence to suggest that the Applicant would be refused access to assistance when needed. On the contrary, it was the Applicant’s evidence that she had never reported the incidents to the police or raised her fear from Dhali or the AL to the authorities or the state. There was no evidence that the authorities knew about her plights. Furthermore, the Board also found as an able-bodied person, she could relocate to different parts of Bangladesh to avoid the perceived risks of harm from Dhali and his AL associates, which the Board found are localised in her home area. As for her fear to live alone as a single women, the Board found she could seek assistance from non-governmental agencies. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that she would face a real risk of ill-treatment if refouled to Bangladesh. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the decision in the Notice. Legal principles applicable to judicial review The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. Grounds for judicial review The Applicant had submitted two letters before the hearing repeated the essence of her case and reiterating her fear in returning to his home country. They will be taken into account, though these letters did not proffer any grounds of application. At the hearing, the above legal principles were explained to the Applicant. She said she had no complaint about procedural unfairness. In response to the Court’s question about error of law, she repeated the basis of her claim. She said she had kidney problem and asked to be released from custody but was told by an immigration officer to apply to the court. Hence, she made the leave application. These are not grounds which support any allegation of errors of law in the Decision. The Court will leave this issue to be explored in its anxious scrutiny of the Board’s Decision. On irrationality, she said she had narrated her problem on paper. However, she was in custody and refused bail. She could not present her case in person. She said it would make a lot of difference if she could. According to the Board’s Decision, she attended the oral hearing before the Board via video link between Immigration Tower where the Board sat and Nei Kwu Correctional Institution where she was then detained. This was probably because at the time the Applicant was serving her sentence for using a false identity card. Except for the distance apart, a hearing via video link is no difference from a hearing face to face. Despite repeated attempts to ascertain from her how the hearing via video link would affect her, she was unable to give an appropriate response. All that she can say was that she could get in touch with people in Bangladesh and she undertook to accept whatever the result of her leave application if she was given bail. The Court considers that in the circumstances there was no procedural unfairness in holding the hearing via video link nor was the Decision rendered irrational as a result. In her supporting affirmation, the Applicant advanced the following four grounds of appeal: the Director’s and the Board’s decisions are unfair and unreasonable; the Director failed to give proper weightage to the presence of state acquiescence; the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and the Director’s attitude was unfair. Some of these grounds are directed at the Director only. As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board as well. At the hearing, the Applicant raised a new claim that she is afraid to return to Bangladesh because Dahlia had made a new case against her for having taken ornaments from him. She said she had not told the Board about this claim because she only came to learn about it in December last year. This is not part of the Decision and will not considered in this leave application. Ground (1): unfairness and unreasonableness The Applicant was unable to provide any particulars of unfairness or unreasonableness. As mentioned in paragraph 17, she confirmed there was no procedural unfairness and she did not consider she had been treated in any way unfairly. There is no substance in this ground. Ground (2): failure to give proper weight to the presence of state acquiescence The Applicant submits that she had asked the authorities for help, but upon hearing Dahli’s name, the police did not accept her complaint. Her submission contradicts her evidence before the Board. She had unequivocally told the Board that she did not make a report to the police as she believed the police would arrest JEI members. That apart her allegation is also contrary to the Board’s finding that Dahli and his AL associates were not state actors when uttering the threats against her. These are finding of facts which this Court could not intervene, save for errors of law, procedural unfairness or irrationality. Ground (3): failure to give proper weight to arguments and COI supporting her case Other than asserting that she was not given help, the Applicant could not identify the arguments or the COI which she complains had not been taken into account or given enough weight to. Whether to accept any argument or COI and the weight to be given to such argument and COI is a finding of fact solely within the province of the Board, which this Court in an application for judicial review could not intervene. In the absence of particulars, the validity of this complaint could not be assessed. As for COI, the Board had studied the COI extensively. It identified the defects, inefficiencies, corruption and abuses of the Bangladesh police force. However, after weighing these in the light of the rapid advancements and cleaning up which had taken place, it was satisfied that adequate state protection is available. These are also finding of fact solely for the Board. Besides, there was no evidence to suggest that the Applicant would be refused access to assistance when needed and it is also her case that she had never reported the incidents to the police or raised her fear from Dhali or the AL to the authorities. There is no substance in this ground. Ground (4): the Director’s or the Board’s attitude was unfair When asked to give particulars of the Board’s unfair attitude, the Applicant confirms that she has no complains. Overall scrutiny Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability It rejected her evidence about the assault on her mother and brother as hearsay. Except for that, the Board assessed her claim on the basis of her case as she asserted. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion For the above reasons, the leave application is refused. Dated the 11th day of March 2025 (Seline Sze) 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 11/03/2025 Khatun Sharifa 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 11/03/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 24215 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1574/24 (Formerly RBCZ 5001172/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1