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HCAL 13/2019
[2021] HKCFI 3882
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 13 OF 2019
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Seiyed Ibrahim Mohamed Anver |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant entered Hong Kong as a visitor on 3/1/2005. He was allowed to stay until 2/2/2005. He overstayed and was arrested by the police. He was interviewed by the Immigration Department on 29/11/2005. He indicated that he would like to raise a torture claim during the interview.[1]
Background
2. The applicant was from Sri Lanka. He was born on 20/2/1975. He told the officer in the interview that he was a businessman. He had lost his passport.
3. The applicant claimed that he was in love with the daughter of an army officer. That officer threatened to kill him. He feared that he would be killed by that army officer if refouled. [2]
4. During the interim on 6/12/2016, the applicant wrote to the Director indicating that he wanted to withdraw his non-refoulement claim. The letter was faxed to the Immigration Department.
5. On 7/12/2016, the Director wrote to the applicant. The Director informed him that his case would be closed.
6. On 10/5/2018, the applicant wrote to the Director requesting to re-open his claim. His ground was that he could not go back as he had a problem in Sri Lanka. The Director wrote to the applicant on 15/5/2018 requesting for further information in support of the application to re-open his claim. The deadline was set on 23/5/2018.
7. On 28/5/2018, the Director refused to re-open the applicant’s claim. The applicant had not responded to the Director’s demand. The Director was not satisfied that there had been a change of circumstances which the applicant could not reasonably have foreseen at the time of the withdrawal. All information submitted so far could not increase the prospect of success in the claim. There was no injustice to refuse to re-open. [3]
8. On 8/11/2018, his appeal to the TCAB was dismissed. The adjudicator agreed with the Director. [4]
Judicial Review
9. The applicant filed a leave application on 3/1/2019. In his affirmation, he requested for an oral hearing.
10. This court fixed a hearing on 18/10/2021. During the hearing, the applicant confirmed that he had withdrawn the application in 2016. He had not responded to the request for further information from the Director in 2018. There was no explanation as to this failure. He stressed that his brother would sponsor him to go to Australia but his problem in Sri Lanka had not been solved. He could not go back.
11. The applicant indicated that he had submitted a claim form in 2005 to the Director. This court asked him to file a copy of that form to this court within 2 weeks. This court made enquiry with the Director. It transpired that there was only a record of interview made on 29/11/2005. There was no NCF or a document of similar nature.
12. This court received a bundle of hand-written records of interview on 23/12/2021 from the applicant.[5] It transpired that he was interviewed a number of times from 21/12/2005 to 9/9/2008. These records were mainly clarifications of the answers he made in the previous occasions. They were related to the factual background of his torture claim. They were not a NCF or a claim form. It is not clear what was the outcome of his torture claim.
13. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
14. The applicant confirmed that he had withdrawn his torture claim in 2016. He had not filed further information in support of the application to re-open his claim in 2018. He had not complied with the requirement of s.37ZE (2) of the Immigration Ordinance, CAP 115. I agree with the decision of the TCAB and the Director.
Conclusion
15. In my judgment, there is no error of law or procedure. I agree with the TCAB decision. It is rational. The intended judicial review is not reasonably arguable. There is no prospect of success. I refuse leave for the intended judicial review.
Dated the 30th day of December 2021.
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(Mike Mak)
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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 30 December 2021
Seiyed Ibrahim Mohamed Anver
Applicant’s ref. no:
Nil.
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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 30 December 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11864/18/6/43/S246
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (18336) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The information was from the record of interview dated 29/11/2005.
[2] Ditto.
[3] This was pursuant to the requirements under s.37ZE (2) of the Immigration Ordinance, CAP 115. See Decision of the Director dated 28/5/2018.
[4] Decision of the TCAB dated 8/11/2018.
[5] The interviews took place on 21/12/2005, 12/1/2006, 27/2/2006, 13/3/2006, 10/5/2006, 14/6/2006, 13/7/2006, 11/9/2007, 15/7/2008, 30/7/2008, 26/8/2008, 9/9/2008.
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