Begum Mst Fathema v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 495/2020[2023] HKCFI 1389

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 495/2020

[2023] HKCFI 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 495 of 2020

BETWEEN
	Begum Mst Fathema	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 To:

Leave to apply for Judicial Review be dismissed for want of prosecution.

Observations for the Applicant:

Introduction

1.There are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 17 January 2020 (the “Decision”); and (2) her application by way of affirmation filed on 7 March 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant is a Bangladeshi national. She came to work as a foreign domestic helper in May 2014. She applied for non-refoulement protection with the Director of Immigration (the “Director”). Her claim was rejected by the Director. She appealed to the Board. Her appeal was dismissed by the Board’s Decision. This is the decision in respect of which the Applicant sought a judicial review under the leave application.

3.Then, 7 March 2023, the Applicant applied by way of affirmation to withdraw her leave application. The reasons for the withdrawal as stated in her affirmation are that “all [her] problem now finished”, “now [her] problem my daughter is very sick” and she wanted to return home as soon as possible. In the light of her alleged fear of harm and risks, these are not appropriate reasons for withdrawing her leave applications. To ensure that her withdrawal application was made under her own free will with understanding of the consequence of the withdrawal, the Court wrote to her on 14 April 2023 giving her directions to lodge a statement before 26 April 2023 confirming:

(i) that her application to withdraw the application for leave to apply for judicial review is made out of her own free will; and

(ii) that she understands that if her application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing her appeal against the decision of the Director of Immigration in the Notice of Decision remains in force.

She was also informed that if no affirmation shall have been filed as required, her application for leave to apply for judicial review may be determined on paper and may be dismissed for want of prosecution.

4.As at the date of this Form CALL-1, the Applicant had not responded. There is nothing to suggest that she has changed her address or has not received the correspondence. Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

Discussion and conclusion

5.Despite the Court’s directions, the Applicant declined to confirm that her withdrawal application is made under her own free will and that she understands the consequence of the withdrawal. The Court is skeptical of the reason for her non-refoulement claims, her application for leave to apply for judicial review as well as her withdrawal application. The Court does not consider it appropriate to allow her withdrawal application.

6.In the light of the Court’s direction, the Applicant must understand that if she does not respond, her leave application may be determined or dismissed for want of prosecution. Her withdrawal application also evinces a lack of intention to prosecute her leave application. The Court therefore considered it appropriate to dismiss her leave application for want of prosecution.

7.For the above reasons, the Applicant’s withdrawal application and leave application are refused.

Dated 25^th day of May 2023.

	( Allen LEE )
	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 25/5/2023 Begum Mst Fathema 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 25/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13458/18/9/219/B1542 Director of Immigration Putative Interested Party’s ref. no.: RBCL 3088/14(CZ) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1