BEGUM MST MUNSURA v. THE DIRECTOR OF IMMIGRATION

HCAL 2536/2018

[2020] HKCFI 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2536 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 31-year-old national of Bangladesh who last arrived in Hong Kong on 22 January 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 January 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 23 May 2016, she did not depart and instead overstayed, and was subsequently arrested for undertaking unauthorized employment for which she was convicted and sentenced to prison for six weeks during which she raised a non-refoulement claim with the Immigration Department 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”).  She was then released on recognizance pending the determination of her claim.     

2.  By a Notice of Decision dated 28 March 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 assessed the level of risk of harm from those local AL supporters upon her return to Bangladesh as low 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 show that reasonable internal relocation alternatives are available in Bangladesh with a large population spread across a vast territory 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 where it would be difficult if not impossible for those local AL supporters to locate her.

4.  On 9 April 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 2 August 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 31 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 12 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that their decisions should be set aside for disregarding the danger and threats that she would face in her home country but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

6.  However, before her application could be dealt with by the court, on 22 July 2020 the Applicant filed an affirmation requesting to withdraw her application because her “problems are now resolved by her family” and therefore she wants to return to her home country.  

7.  In the premises and as the basis of her claim no longer exists, it would be appropriate for her application to be dismissed rather than withdrawn.  Accordingly I dismiss her application for leave to apply for judicial review of the decisions of the Director and the Board.

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