Alapee Azadi Begum v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2721/2018

[2021] HKCFI 1752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2721 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Director of Immigration dated 31 January 2018 (“the Director’s Decision”).

2.The Director’s Decision rejected her claim for non-refoulement.  On appeal to the Board, she withdrew her appeal and the Board decided to accept her withdrawal. Form 86 was filed before the Board’s Decision dated 18 June 2019 (“the Board’s Decision”). The Board’s Decision is also considered in order to obviate the possibility that the applicant could apply for leave to judicially review the Board’s Decision.

3.  It should be noted that when the applicant made the non-refoulement claim, she and her daughter were the applicants, the same appellants in their appeal to the Board.  However, in this application, the applicant deliberately deleted her daughter’s name in Form 86.  This is her own application.

4.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

5.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held:

“45. … … we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

6.It therefore follows that the Director’s Decision is not susceptible to judicial review by this Court.  The applicant’s application in respect of the Director’s Decision is therefore dismissed.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

8.I shall now consider the applicant’s case, the Director’s Decision, and the Board’s Decision.

The applicant

9.The applicant is a citizen of Bangladesh.  She came to Hong Kong as a domestic helper on 8 December 2012.  She gave birth to her daughter.  Her employment contract was terminated.  She overstayed.  She surrendered to the Immigration Department on 20 October 2015.  She raised non-refoulement claim with the Immigration Department by written representation dated 7 January 2016.

10.Her reason for her application is that if refouled, she and her daughter would be in danger due to the threats from her brother-in-law, Nasir Uddin (“Nasir”).  Her husband worked in Hong Kong.  He sent money to Nasir.  He told her to obtain money from Nasir.  However, when she asked for money, Nasir was unhappy.  She lived in the in-law family together with Nasir and his wife.  She was badly treated by them.  Sometimes, she was slapped on her face by the wives of her brothers-in-law.  Her husband obtained a working visa for her to come to Hong Kong.  Details of her story are set out in paragraph 7 of the Director’s Decision.

The Director’s Decision

11.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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 under RC”).

12.By Notice of Decision dated 31 January 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.  He found that the level of risk of herself and her daughter being harmed by Nasir if they returned to Bangladesh was assessed to be low [15]; that Nasir and his wife showed no real intention of harming her [23]; that her conduct was inconsistent with that of a person in fear for life [25]; that state protection would be available to her [30] and that internal relocation was an option open to her [40].

The Board’s Decision

13.The applicant appealed to the Board.  She attended a hearing on 18 June 2019.  At the hearing, she withdrew her appeal and also her daughter’s appeal on the reason that it was safe for them to return to Bangladesh.  The Board, having considered that she had made the decision of withdrawing her and her daughter’s appeal of her own free will, knowing the consequences of her decision, approved her application.  The Board had also confirmed the Director’s Decision.

Application for leave to apply for judicial review

14.By Form 86 dated 30 November 2018, under Order 53, rule 3(2) of the RHC, the applicant applied for leave to apply for judicial review of the Director’s Decision.

15.In her affirmation in support of her application dated 30 November 2018, she enclosed some documents with her affirmation without specifying any specific grounds for her application.

DISCUSSION

16.Her application in respect of the Director’s Decision has been disposed of in paragraph 6 above.

17.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

“41. … …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42.  The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

18.It is thus quite clear that she applied to the Board of her own accord, knowing that her application was to withdraw her appeal.  It is a valid withdrawal of her appeal.

CONCLUSION

19.The Board was correct to accept her application for withdrawal of her appeal.  As such, the Board becomes functus officio. There is no reasonable chance that her intended appeal would succeed if she challenges the Board’s Decision.  Accordingly, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decision.

Dated the 16^th day of July 2021

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