Re Sumi Begum

HCAL 2868/2018

[2021] HKCFI 1953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2868 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  13 July 2021

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D E C I S I O N

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1.The applicant is from Bangladesh. She was a domestic helper in Hong Kong from 19/5/2006 to 19/5/2008. Her contract was terminated pre-maturely. She was allowed to stay until 20/11/2007.[1] She overstayed for more than 7 years until she surrendered to the Immigration Department on 5/2/2015. She filed the non-refoulement claim in this case on 23/4/2015.

2.She alleged that she would be killed or harmed by her brother-in-law if she returned to Bangladesh.  The Director rejected her claim on 6/7/2018.  The TCAB refused her appeal on 29/11/2018. 

3.On 14/12/2018, the applicant applied for leave for judicial review of both decisions.  Leave was refused on 6/8/2020.

4.Deputy Judge Lung reiterated that it was for the TCAB and the Director to determine the factual basis of the claim.  He found no error of law or procedures.  The decisions were rational.  The applicant failed to show that there was any reasonable prospect of success in the intended judicial review.

5.The applicant filed a summons on 14/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  She was about 7 weeks out of time.

6.In her affirmation in support of the application for extension of time, the applicant submitted that she only received the decision on 9/10/2020 from the landlord.  She had since taken legal advice.  She thought there was a good ground which was not mentioned in the leave application.  It was her oversight. She stressed that both the TCAB and the Director had not made proper enquiry of the situation in Bangladesh.

7.In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[2]

8.The applicant is out of time for about 7 weeks.  It is substantial delay. She said in her affirmation that she received the court decision from the landlord on 9/10/2020.  However, she gave no further explanation for this delay.  

9.There was no problem in the mail.  All along, this court used the same address as written on the summons filed for the extension of time.  In my view, she should not have waited passively for the outcome of the leave application.  She should have asked the landlord.  She should make enquiry with the court.

10.She mentioned that there was a good ground for the leave application which she left out in the leave application.  She gave no detail about this ground in her affirmation.

11.While I have grave doubt about her reasons for the delay, the paramount importance at this stage is the merits of the intended judicial review [3].

12.The applicant claimed that her husband died of liver cancer in 1999.  Her in-laws accused that she had killed her husband.  She was detained and ill-treated by her in-laws for 40 days after she attended the funeral.  She was subsequently allowed to leave but her 4 children had to stay behind with the in-laws.  When she returned to visit her children later, her brother-in-law threw a knife at her injuring her left heel.  He threatened to kill her if she dared to take away her children.  She left Bangladesh in 2006 for fear of further harm.[4]

13.The Director rejected her claim.  There was no injury which attained a minimum level of severity.  Before she left Bangladesh in 2006, she had not encounter her in-laws for about 5 years.  She delayed her application for non-refoulement claim until 2015 which was more than 7 years after she overstayed in Hong Kong.  This conduct was inconsistent with her fear.

14.The adjudicator found that her in-laws had no intention to hurt her further.  She was allowed to leave with her mother.  When she returned to visit her children a month later, her brother-in-law threatened her only to stop her taking the children away.

15.After the above incident in 1999, her in-laws did not threaten her until she left for Hong Kong in 2006.  At the time of the assessment in 2018, her children were aged 21-26.  No one could stop them meeting the applicant.  In fact, the applicant had not contacted her children for over 10 years.  Her intention to take back her children was not convincing.

16.The adjudicator concluded that the applicant would not be subject to torture or ill-treatment if she returned to Bangladesh.  There was no persecution.  He dismissed her appeal on all grounds.  He confirmed the decision of the Director.

17.I have carefully considered the reasons given by Deputy Judge Lung.  I agree with his judgment.  I also agree with the decision of the adjudicator.  The applicant failed to point out any error in the judgment.  The intended judicial review was of no merit.  There is no merit in the intended appeal.

18.In the circumstances, I refuse the application for extension of time to appeal.

The applicant was unrepresented.