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HCAL 3742/2019
[2023] HKCFI 2938
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3742 of 2019
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BETWEEN
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Akter Mst Sahina |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Application for withdrawal
1. The applicant remains in Hong Kong without permission of the Director of Immigration. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. She appealed to the Torture Claims Appeal Board (the “Board”). The Board dismissed her appeal.
2. The applicant filed Form 86 on 16 December 2019 for leave to apply for judicial review of the Board’s Decision dated 6 December 2019 (“the Board’s Decision), which approved her application to withdraw her appeal.
3. The applicant sent two letters dated 6 and 18 September 2023 to the court in which she said she wants to go back home as soon as possible as all her problems there have been solved and that she would not wait for the court’s reply. This should be taken for her application for withdrawal of her application.
4. There is nothing outstanding in this action.
5. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:
“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
6. The application should therefore be dismissed.
Application for re-opening of her application
7. However, before the above Order is sealed, the applicant lodged a letter dated 20 October 2023, in which she said that she asked for re-opening her application as she does not want to go back to Bangladesh because her life is still in danger.
8. In the circumstances, the Court will deal with the merits of her application.
The application
9. The applicant is a national of Bangladesh, aged 35. She came to Hong Kong on 29 May 2015 to work as a domestic helper. Her employment contract was prematurely terminated on 4 December 2016. She did not depart and overstayed since 19 December 2016. She was arrested by police on 31 July 2017 and was referred to the Immigration Department. She lodged her non-refoulement claim by way of written submissions on 5 August 2017, 20 September 2017 and 28 September 2017 respectively. She claimed that, if refouled, she would be harmed or killed by some members of the Awami League (“AL”) because her father was an active member of Jamaat-e-Islami (“JEI”).
10. Briefly stated, her father was a member of JEI and he worked for the party with pay. In 2011, the AL people threatened to kill her father unless he left Bangladesh. He did not want to leave. He therefore moved with his family to live in Natore, a place of 4-hour train from their home village where they lived for 3 years without incident. Then they moved back to their home village, thinking that the AL people might have forgotten about them. However, after they moved back, they received threats from the AL people again. They also threatened to abduct the applicant. Her father got an agency to get overseas employment for the applicant. She therefore worked in Hong Kong. However, her employment contract was prematurely terminated and she went to Macau. She was sent back to Bangladesh by the agency in Macau in July 2014. She received further training in Bangladesh. On 29 May 2015, she came to Hong Kong again on the strength of a passport. She was permitted to work as a domestic helper. On 18 December 2015, she received a phone call from her brother in the Philippines, telling her that their parents were taken to a police station. He did not know which police station and he said that he would look for their parents. Then she has no further contact with her brother. Her employment contract was terminated on 4 December 2016, but she did not return to the Philippines. Details of her story can be found in paragraph 6 of the Director’s Decision described below.
The Director’s Decision
11. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
12. Having considered her evidence, the Director rejected her application for the reasons that the absence of low intensity and frequency of the ill-treatment from the AL people in the past is indicative of a small future risk from them [10] – [14]; that state protection would be available to her upon her return [15]-[16]; and internal relocation was a viable alternative for her [17]-[22]. By Notice of Decision dated 20 December 2018 (“the Director’s Decision”), the Director rejected her application.
The Board’s Decision
13. The applicant appealed the Director’s Decision to the Board. However, by her letter dated 31 October 2019, she applied to the Board to withdraw her appeal.
14. The Board was concerned about her withdrawal and wrote to her to enquire the reasons for her withdrawal. She did not reply. The Board considered further her application for withdrawal of her appeal and came to its conclusion that her application was made with her free will. The Board therefore approved her application and disposed of her appeal accordingly in the Board’s Decision.
Application for leave to apply for judicial review
15. By way of Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.
16. The applicant has not submitted any ground in support of her application.
Discussion
17. From the procedural history above, it is quite clear that the applicant applied to the Board for withdrawal of her appeal. There is no evidence to show that her application for withdrawal was not of her own free will. The Board was right to dispose of her application accordingly.
18. She has given no valid ground to challenge the Board’s Decision.
19. Since the Board had not considered the merits of her case, it will be prudent for this Court to consider the merits of her case by reference to the Director’s Decision.
20. From the evidence available, the Director’s Decision dealt with her application in accordance with the administrative law and its decisions are not in any way Wednesbury unreasonable. There is also no valid reason from the applicant to challenge the Director’s Decision.
21. The applicant fails to show that she has any realistic prospect of success in her intended applicant for leave to apply for judicial review of the Board’s Decision
Conclusion
22. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss the applicant’s application.
Dated the 23rd day of November 2023
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(M.O. WONG)(Ms)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 23/11/2023
Akter Mst Sahina
Applicant’s ref. no:
Nil |
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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 23/11/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15005/18/12/362/
B1819
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4641/18 (formerly RBCZ 11667/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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