MARMA OYANU v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 374/2023 [2024] HKCFI 1738 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 374 OF 2023 BETWEEN Marma Oyanu Applicant and Torture Claims Appeal Board and Putative Respondent 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 / the Applicant being absent in open court; Order by Deputy High Court Judge Bruno Chan: Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 June 2022 be refused; and The application for leave to apply for Judicial Review be dismissed. Observations for the Applicant: The Applicant is a 36-year-old national of Bangladesh who arrived in Hong Kong on 7 January 2014 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 employment was prematurely terminated on 7 February 2016, she did not depart and instead overstayed, and on 30 March 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by some of the local Muslims in her home district for religious reason. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised as Buddhist in Village Babupara, Changra Chari, Mahalchari District, Khagrachari, Bangladesh. After leaving school she worked as a garment worker, got married and moved with her husband to Chittagong where they raised a family with a son. In 2003 the former home village of the Applicant in Mahalchari District together with 2 other neighbouring villages were burnt down by Muslims settlers trying to illegally possess those lands, and in subsequent protests by the villagers against such illegal actions, the Applicant together with her husband attended one of such protests in support of the villagers, but afterwards she started to receive threatening messages from those Muslims settlers, and that some members of the local Muslim community in her home district in Changrachori also demanded that she converted her religion to Islam, and when she refused, they also made threats against her that she eventually in 2010 fled to Chittagong to avoid such threats. To stay away from any such further threats, the Applicant in late 2013 decided to apply to work in Hong Kong as a foreign domestic helper, which she did in January 2014 to start her first employment, while her husband and family subsequently in June 2014 also moved to Myanmar after receiving similar threats from those local Muslims, and so when her last employment was prematurely terminated later in February 2016, the Applicant was afraid to return to Bangladesh, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 November 2018 and attended screening interview before the Immigration Department with legal representation. By a Notice of Decision dated 17 December 2018 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”). 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 those local Muslims in her home district upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill her or target her for harm, that in any event in the absence of 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 157 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 areas of the country away from her home district in large cities such as Dhaka where it would be difficult if not impossible for anyone to locate her. On 28 December 2018 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 21 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 June 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision. 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 some local Muslims for religious reason that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of those local Muslims to harm or kill her for religious or any other reason, and that in any event in the absence of 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 that her claim for non-refoulement protection failed on all applicable grounds. On 13 March 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her Form and supporting affirmation of the same date she put forward the following grounds for her intended challenge: (1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements; (2) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s 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 failed to give the Applicant a fair opportunity to put forward her submissions in her appeal hearing or to invite her to reply to the Director’s submissions; and (6) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information resulted in making groundless speculations that it would be safe for the Applicant to return to her home country. By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. As the last day of the three-month period for her to file her Form 86 fell on 2 September 2022, the Applicant was therefore more than 6 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. In the Applicant’s case, a delay of more than 6 months must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 2 June 2022 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay. As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions 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 that the Adjudicator had acted procedurally unfair or irrational, or how was the Applicant prevented from putting forward her submissions or representations during her appeal hearing before the board, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, 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. In the Applicant’s case, the Board rejected her claim upon finding no reliable evidence of any real intention of those local Muslims to harm her for religious reasons for the thorough and detailed analysis and reasoning set out in paragraphs 48 - 56 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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, I do not find any reasonably arguable basis to challenge the finding of the Board. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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. 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. Moreover, the Applicant recently on 3 June 2024 filed an affirmation requesting to withdraw her application as she no longer has any problem returning to her home country. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay and given her latest confirmation of no more problem for her to return to her home country, I refuse to extend time and accordingly dismiss her leave application. Dated the 9th day of July 2024 (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 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 9 July 2024 Marma Oyanu 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 9 July 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 15068/18/12/425/B1837 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4888/18 (Formerly RBCZ/10137/18 (PSO)) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) _________________________________________________________________________ Form CALL-1