MBOWETO IBRAHIM MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2902/2019

[2025] HKCFI 2618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2902 of 2019

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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The applicant applies for leave to apply for judicial review of the Board’s Decision dated 26 September 2019 (“the Board’s Decision”). He did not set out any reasons in support of his application in Form 86.

2.  I dismiss his application for the reasons below:

a.  According to the Notice of Decision dated 2 May 2019 (“the Director’s Decision”), the applicant lodged his claim on 19 August 2016. However, he failed to submit the completed Non-refoulement Claim (“NFC”) within the prescribed time, 22 August 2018 in compliance with section 37Y(2) of the Immigration Ordinance, Cap. 115 (“the Ordinance”)

b.  Under section 37ZG(1)(A) of the Ordinance, his claim must be treated as withdrawn. He may apply to reopen his claim under subsection (3) of this section if he can show that he had exercised all due diligence to make the return of the NFC and he failed to do so because of circumstances beyond his control.

c.  By letter dated 9 April 2019, the Director requested him to give evidence for compliance of section 37ZG(3) of the Ordinance in support of his application for re-opening his claim, giving him further time until 23 April 2019. He failed to comply with the Director’s request without giving any reason. The Director therefore refused to re-open his claim.

d.  He filed Form 86 for application for leave for judicial review of the Board’s Decision. But he failed to support his application with any reasons.

e.  The Court has written to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office for the Board’s Decision, which is not on the Court’s file.

f.  The Board replied that there was no record that the applicant had filed any notice of appeal.

g.  This Court set down the case for hearing on 26 May 2025. Due notice has been given to the applicant at his last known address and there was no return from the Post Office that the notice was not served. He is deemed to receive the Court’s notice for the hearing.

h.  He was absent at the hearing on 26 May 2025 without giving any reasons for his absence.

i.  Since the subject matter of his application, i.e. the Board’s Decision is non-existent, and the applicant did not appear before the Court to explain the position, his application should be dismissed.

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