AKTER NASRIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1697/2019

[2020] HKCFI 2556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1697 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 30 March 2013 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 last employment contract was prematurely terminated on 17 June 2014, she did not depart and instead overstayed in Hong Kong, and on 15 June 2015 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 the local supporters of rival political party Awami League (“AL”).     

2.  By a Notice of Decision dated 23 January 2018 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”).

3.  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 will be any real and substantial risk of her being harmed or killed by those local AL supporters upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that 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 part of Bangladesh away from her home district in large cities such as Bhola or Chittagong where it would be difficult if not impossible for those AL supporters to locate her.

4.  On 1 February 2018 the Applicant 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 25 February 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 11 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director. 

5.  On 20 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of copies of the previous decisions and documents from her appeal before the Board but without putting forward any proper ground for her intended challenge.

6.  However, before her application could be dealt with by the court, the Applicant on 24 September 2020 filed an affirmation requesting to withdraw her application because “her problem in her country is solved”.

7.  In the premises and since the basis of her claim no longer exists, it would be appropriate that her application be dismissed rather than withdrawn. Accordingly I accede to her request and dismiss her application. 

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

Form CALL-1