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Re Doly Sharmin Akther

Judgment Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
Judgment Date21 December 2018
Neutral Citation[2018] HKCA 814
Year2018
Judgement NumberCACV301/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV301/2018 RE DOLY SHARMIN AKTHER

CACV 301/2018

[2018] HKCA 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 2018

(ON APPEAL FROM HCAL NO. 1135 OF 2017)

__________________________

RE: DOLY SHARMIN AKTHER Applicant

__________________________

Before: Hon Yeung Ag CJHC, Hon Yuen and Hon Pang JJA in Court
Date of Judgment: 21 December 2018

___________________

J U D G M E N T

___________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 28 June 2018 in HCAL 1135/2017 refusing leave to the applicant to apply for judicial review.

2. Because of the non-compliance with the direction for lodging skeleton submission within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 27 November 2018), the applicant would be deemed to have waived his right to have an oral hearing. This appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3. The applicant is a national of Bangladesh. She came to Hong Kong to work as a domestic helper and was permitted to remain for employment until 1 November 2015 or two weeks after termination of contract, whichever was earlier. On 22 January 2015, the applicant’s employment contract was terminated prematurely but she did not leave Hong Kong within two weeks and had overstayed since 6 February 2015. She was arrested by police on 29 October 2015 and was served with a removal order on 22 December 2015 by the Immigration Department. On 22 November 2015, she lodged a non-refoulement claim. Her claim was based on her fear of being ill-treated, or even killed, by money lenders because her late husband could not repay the loan he owed to the money lenders. She was also worried that she would encounter difficulty living in Bangladesh without any male companion as her husband had passed away.

4. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1414. We shall not repeat the same here.

5. By the Notice of Decision dated 12 July 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk, torture risk, and persecution risk. By a further decision of 24 July 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6. The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 31 October 2017, the Board dismissed the appeal on 7 December 2017. The Board found at [34] and [35] of its decision that the applicant was not a credible witness, and that she did not make a “genuine effort” to substantiate her case and thus failed to establish that there were substantial grounds that she would face a real risk of ill-treatment if refouled. The Board concluded at [41] to [45] of its decision that the applicant failed to establish her non-refoulement claim under all applicable grounds.

The Judge’s decision

7. The intended application for judicial review was in respect of the decisions of the Director and the Board. The Form 86 filed on 22 December 2017 did not contain any grounds for seeking relief. In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1) Procedural impropriety in failing to consider the issue of state acquiescence by the Director and the Board.

(2) Failing to conduct sufficient enquiry as to the relevant Country of Origin Information (‘COI’) by the Director.

(3) Failing to give reasons in rejecting the applicant’s case on the BOR 3 risk by the Director.

(4) Taking into account irrelevant considerations including the manner of her latest departure from Bangladesh.

(5) Failing to take into account of her psychological strain and her fear of returning to Bangladesh by the Director and the Board.

(6) Failing to take into account of the political and human rights conditions of Bangladesh by the Director and the Board.

8. On 28 June 2018, the Judge gave his decision refusing to grant leave...

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1 cases
  • Re Doly Sharmin Akther
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 19 d2 Março d2 2019
    ...JUDGMENT _______________________ Hon Yeung Ag CJHC (giving the Judgment of the Court): 1. By a judgment dated 21 December 2018 ([2018] HKCA 814) (“the Judgment”), this Court (Hon Yeung Acting CJHC, Yuen and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court......

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