Case Document

100%Judiciary

HCAL1097/2018

[2019] HKCFI 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1097 of 2018

BETWEEN

	Momotaz	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested party

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 the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) as the interested party.

The applicant

2.The applicant is a Bangladeshi national, who came to Hong Kong as a domestic helper on 4 November 2014. She was permitted to stay until 4 November 2016 or two weeks after termination of her contract, whichever is the earlier. Her contract was terminated on 24 December 2014. She overstayed without the Director’s permission. On 6 May 2015, she surrendered herself to the Immigration Department. On 18 September 2015, she lodged her non-refoulement claim.

3.By letter dated 27 February 2017, she withdrawn her non-refoulement claim application because she said that she wanted to go back to Bangladesh. Her application of withdrawal was entertained by the Director. By letter dated 9 March 2017, she was informed that no further action would be taken by the Director.

4.By another letter dated 18 April 2017, the applicant requested the Director to re-open her non-refoulement application. The Director acceded to her request.

5.The applicant claimed that if she was to be returned to Bangladesh, she would be in fear of being harmed or even killed by her husband, Saiful Islam, the General Secretary of Chatra League (the student wing of the Awami League) and his party members because she, being the General Secretary of Chatra Dal (also known as Jatiyatabadi Chhatra Dal) [the student wing of the Bangladesh Nationalist Party] refused to join his party. Besides, she had taken 150,000 Taka from Saiful’s house before she left him.

The Director’s Decision

6.The applicant went through the unified screening by the Immigration officer on the following risks:

a.  risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“RC”) (“Persecution risk”);

b.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture 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.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”).

7.By Notice of Decision dated 14 August 2017, the Director rejected her application because she was unable to substantiate her claims. He had set out his reasons in the Decision.

The Board

8.The applicant appealed to the Board.

9.However, before the Board delivered its Decision, on 18 May 2018, the applicant applied to the Board to withdraw her appeal.

10.By letter dated 24 May 2018, the Board informed the applicant that the Board approved her request and her appeal was directed as withdrawn.

11.By another letter dated 7 June 2018, the applicant requested the Board to re-open her appeal.

12.By letter dated 13 June 2018, the Board informed the applicant and the Director that it was already functus officio and could not re-open her appeal, relying upon the decision in Hussain Tasawar v Betty Kwan, Adjudicator Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director of Immigration as Interested Party HCAL 20/2015, 17 March 2017.

Application for leave for judicial review

13.By Form 86 dated 14 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.

14.In her affirmation in support of her application filed on 14 June 2018, she set out her grounds in support of her application, which I shall summarized below:

a.  she was wrong to have submitted her application for withdrawal of her appeal to the Board;

b.  she thought that her problem in Bangladesh had been solved, but in fact, it had not been solved and she would encounter danger if she returned; and

c.  the Board had not shown mercy on her.

DISCUSSION

15.The applicant has appeared before me as she requested a hearing by the Court.

16.She confirmed that she deliberately made her application for withdrawal of her appeal as she was informed that her problem in Bangladesh had been solved.

17.However, she was subsequently told that in fact her problem had not been solved. She therefore asked for reinstatement of her appeal.

18.She has not read the case referred to her by the Board herself. Nor had she asked for legal advice.

19.The applicant was informed that according to the decision of the Court in that case, the Board had no power to deal with her appeal once the Board had accepted her application of withdrawal if her application for withdrawal was made by herself consciously.[1]

20.I agree with the learned Deputy Judge of the cited case. The Board was right to have made the decision. The applicant has no grounds to challenge its decision.

CONCLUSION

21.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for her judicial review. Accordingly, I dismiss her application.

Dated the 31^st day of January 2019

(Alan Ngan)
for Registrar, High Court

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 his solicitors must:

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)).

Sent to the Applicant on 31/1/2019
Momotaz

Applicant’s ref. no:
Nil.

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 31/1/2019

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8253/17/8/291/B947

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1445/17 (formerly RBCZ 10954/17)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] Hussain Tasawar v Betty Kwan, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of the Immigration as interested party, HCAL 20/2015, 17 March 2017. See below:

“40.  Therefore, though the appeal of HT has not been determined on its merits, it was disposed of by his withdrawal of the same and it follows that HT’s claim, which was rejected at the first tier, is deemed to be finally determined within the meaning of section 37V(2).

41.  Further, once the withdrawal of HT’s appeal was accepted by the Letter, his appeal has not gone into a state of suspended animation but simply ceased to exist. Section 16 of Schedule 1A is inapplicable as the appeal is no longer pending to be heard and determined by the Board.

42.  I agree with the adjudicator that the Board cannot rely on section 16 of Schedule 1A to re-instate a validly and effectively abandoned or withdrawn appeal. The adjudicator already held the Hearing to determine the validity of the withdrawal as a matter of practice and procedure. With the claim and the validity of the withdrawal having been finally determined, I agree with the adjudicator that the Board has no further function and is functus officio.”

Cites 1 case

Cases cited in this judgment

Hussain Tasawar v. Betty Kwan, Adjudicator (Torture Petitions) of the Petition Team of the Security Bureau

HCAL 20/2015

High Court CFI17 Mar 2017

Cited by 3 cases

Other judgments that cite this case

Re Momotaz

Court of Appeal13 Jun 2019

Re Momotaz

Court of Appeal05 Aug 2019

Momotaz v. Director of Immigration

High Court CFI08 Oct 2021

Momotaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office