EREMODO SEMISA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3207/2019

[2020] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3207 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of Fiji who last arrived in Hong Kong on 3 May 2012 with permission to remain as a visitor up to 5 May 2012 when he did not depart and instead overstayed, and upon his subsequent arrest by the police and was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Fiji he would be harmed or killed by his paternal uncle over some land dispute.     

2.  By a Notice of Decision dated 25 October 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Fiji as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Fiji with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Fiji away from his home district where it would be difficult if not impossible for his uncle to locate him.

4.  On 7 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 25 June 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 28 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given either in his Form or his supporting affidavit of the same date.

6.  However, before his application could be dealt with by the court, the Applicant on 7 July 2020 filed an affidavit to withdraw his application because he wants to return to his home country as “all his problems are now finished”.

7.  As such and as the basis of his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn.  Accordingly I dismiss his application for leave to apply for judicial review of the Board’s decision.

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