RE KHATUN FATEMA

HCAL 1617/2019

[2021] HKCFI 3757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1617 OF 2019

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D E C I S I O N

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1.  The applicant was from Bangladesh. She first entered Hong Kong on 30/10/2015 under a contract for a domestic helper for 2 years. Her contract was terminated early. She overstayed since 2/12/2015. She surrendered to the Immigration Department on 31/3/2016. She then lodged the non-refoulement claim in this case on 24/3/2017.

2.  The basis of her claim was that she feared that her husband “R” would ill-treat or kill her.

3.  In 2012, she married “R”. After the marriage, she discovered that “R” had already married. He was involved in various kinds of illegal activities [1]. He was a member of the Awami League (AL). He had a group of followers. “R” was always drunk. He assaulted her with bare hands and kicks. When she was pregnant in October 2012, “R” even forced her to have sex with his friends. She was injured and needed suturing to her vagina to prevent miscarriage. It took her a long time to recover.

4.  Around August 2013, “R” sold her as a sex slave. She managed to escape from the brothel. “R” assaulted her severely on knowing this. She was hospitalized for 2 days. She stayed with her mother afterwards. In October 2015, she came to Hong Kong employed as a domestic helper. After early termination, she overstayed for nearly 4 months. She surrendered to the Immigration Department on 31/3/2016.    

5.  The Director rejected her non-refoulement claim on 22/2/2018.  Her appeal to the TCAB was dismissed on 6/6/2019.

6.  The adjudicator concluded that the applicant’s fear was unlikely to materialize. She stayed with her mother safely for nearly 2 years before coming to Hong Kong. She refused to return to “R” during this period. The asserted fear of “R” was unreal. “R” had no intention to kill her. The injuries did not amount to a minimum level of severity. There was no involvement of AL. This was a case of domestic violence without any political involvement.

7.  On 13/6/2019, the applicant applied for leave for judicial review of the decision of the TCAB.  She made no specific complaint about the TCAB.

8.  In the hearing on 23/2/2021, the applicant confirmed that she had nothing to update. Her daughter lived safely with her mother in Bangladesh. She had not contacted “R” since she came to Hong Kong.

9.  The adjudicator had analyzed her evidence in detail. I agree with the findings of the adjudicator. There was no error of law or procedure. The decision of the TCAB is reasonable. I refused leave on 20/5/2021.

10.  The applicant filed a summons on 8/6/2021 for extension of time to appeal against the decision of this court.  She was out of time for 5 days.

11.  In her affirmation, the applicant indicated that she only received the decision of this court on 7/6/2021.

12.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[2]

13.  There was a delay of 5 days. The applicant did not give further details. The decision of this court was sent to the correct address. It was unusual that it took about 18 days to reach her. While there may not be any conclusive explanation of the situation, the important issue at this stage is the merits of the intended judicial review.

14.  As set out above, I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review. Having considered all factors, I refuse the application for extension of time to appeal.