AFRIN PRITI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2031/2018

[2020] HKCFI 2088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2031 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a national of Bangladesh who arrived in Hong Kong on 19 December 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 December 2015 or within 14 days of its early termination, but when her contract was prematurely terminated on 25 February 2014, she did not depart and instead overstayed and was arrested by police on 14 July 2015.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of rival political party Awami League (“AL”).

2.  Before her claim could be determined by the Immigration Department, the Applicant on 28 June 2016 through her lawyer from the Duty Lawyer Service wrote to the Department to request to withdraw her claim as her problem in Bangladesh had been solved and that she would like to return to her home country.

3.  However, on 2 December 2016 the Applicant requested to re-open her claim, but when she failed to submit further information and evidence in support of her request to re-open her claim as required by the Immigration Department, by a Notice of Decision dated 14 March 2017 the Director of Immigration (“the Director”) refused to re-open her claim.          

4.  On 22 March 2017 and 3 April 2017 respectively 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 7 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 13 October 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 26 September 2018 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 repeated her claim that her life would be in danger in her home country without putting forward any proper ground for her intended challenge.

6.  She was then also seriously out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

7.  In the Applicant’s case, her delay was more than 8 ½ months and must be regarded as very substantial and excessive for which she did not provide any explanation, but before the court was in a position to consider whether to extend time to her application, the Applicant on 11 August 2020 filed a letter to request to withdraw her application because there is no more risk in her home country for her and that it is safe for her to go back to her home.

8.  As such and as the basis for her claim no longer exists, it would be appropriate for her application to be dismissed rather than withdrawn.  Accordingly I 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