REQUENA ALMEIDA ANNYS JOSE v. DIRECTOR OF IMMIGRATION

HCAL 32/2018

[2019] HKCFI 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 32 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.  By her Form 86 dated 8 January 2018, the Applicant seeks leave to apply for judicial review of a “Decision Dated 17-10-2017”, but fails to identify the nature of the decision sought to be challenged, or set out any grounds in support of the application.

2.  In her affirmation filed in support of the application, the Applicant states that she wishes to review the refusal decision of the “Immigration Tribunal and Non Refoulement Claims Petition Office”, alleging that the decision of the “Board … is not fair and unreasonable”.  Attached to the affirmation as Exhibit “A” is a written “Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C” dated 16 October 2017 (“the Notice”) issued by the Immigration Tribunal dismissing the Applicant’s appeal against a removal order without a hearing (“the Decision”).

3.  The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) has confirmed that it has not made any relevant decision in relation to the Applicant.  Accordingly, the present application shall be treated as an application for leave to apply for judicial review of the Decision made by the Immigration Tribunal.

4.  The leave application was heard on 12 April 2019.  The Applicant failed to appear at the hearing.  At the conclusion of the hearing, the court announced that the application was dismissed with costs, with brief reasons to be given later.  This I now do.

BASIC FACTS

5.  The Applicant is a Venezuelan national holding a Venezuelan passport.  She has no right of abode in Hong Kong.  She last arrived in Hong Kong via Lok Ma Chau Control Point on 24 March 2017, and was permitted to remain as a visitor until 23 April 2017.  However, she did not leave Hong Kong on or before 23 April 2017, but surrendered herself to the General Investigation Section of the Immigration Department on 24 April 2017, claiming that she had lost her Venezuelan passport.

6.  On 15 August 2017, an Assistant Director of Immigration, acting under the powers conferred on him by Section 19(1)(b) of the Immigration Ordinance, Cap 115, made a removal order (“the Removal Order”) against the Applicant requiring her to leave Hong Kong, on the ground that she was contravening or had contravened a condition of stay in respect of her.  In what follows, references to Sections shall be to the Immigration Ordinance.

7.  On 3 October 2017, the Immigration Department served on the Applicant (i) a “Summary of Facts and Reasons for Removal” and (ii) a “Notice of Removal Order and Right of Appeal”, receipt of which were acknowledged by her in writing.  On the same day, the Immigration Department received the Applicant’s “Notice of Appeal Against Removal Order” (“the Notice of Appeal”) under Section 19(b).  In that notice, the Applicant stated that she could not go back to Venezuela because her ex-partner was threatening to kill her.

8.  On 4 October 2017, the Removal Section of the Immigration Department treated the Applicant’s aforesaid statement in the Notice of Appeal as a potential non-refoulement claim and passed it to the Removal Assessment Section (“the RAS”) of the Immigration Department for further consideration.  On 9 October 2017, the Immigration Department also passed the Notice of Appeal to the Immigration Tribunal for consideration and processing.

9.  On 13 October 2017, the Immigration Tribunal dismissed the Applicant’s appeal without a hearing (ie the Decision) pursuant to Section 53, on the ground that the facts and matters relied upon by the Applicant would not entitle her to succeed in the appeal.

10.  On 16 October 2017, the Immigration Tribunal issued the Notice informing the Applicant of the dismissal of her appeal and the reason for the decision.  The Immigration Department served the Notice on the Applicant on 17 November 2017, receipt of which was acknowledged by her in writing.  On the same date, the Applicant wrote to the Immigration Department stating that (i) she wanted to go back to Venezuela as soon as possible, (ii) she was safe to go home, and (iii) she wanted to cancel all her non-refoulement claims in Hong Kong, and did not need to see her non-refoulement case officer.  She repeated the same stance in a further letter to the Immigration Department dated 24 November 2017.

11.  On 8 January 2018, the Applicant made the present application for leave to apply for judicial review.  As earlier mentioned, in her affirmation filed in support of the application, the Applicant stated that she wished to apply for judicial review of a refusal decision of “the Immigration Tribunal and Non Refoulement Claims Petition Office”.

12.  On 9 May 2018, the Board informed the court that it had not received any appeal/petition from the Applicant, and therefore did not understand how there could be any application for judicial review of a decision made by the Board.

13.  Notwithstanding the Applicant’s indication that she wished to cancel all her non-refoulement claims in Hong Kong, as a matter of fact, she continued to pursue her non-refoulement claim, including attending an interview on 27 June 2018 by the RAS, during which she was told to complete and return the “Non-refoulement Claim Form” (“the Form”) together with all available supporting documents within 28 days of a request which would be served on her in due course for the return of the completed Form.  At the interview, the Applicant informed the RAS that she wished to seek publicly-funded legal assistance provided by the Duty Lawyer Service (“DLS”) in relation to her non-refoulement claim.

14.  On the same date, ie 27 June 2018, the Immigration Department referred the Applicant’s case to the DLS, enclosing therewith. inter alia, the Applicant’s Consent for Release of Information to the DLS.

15.  On 29 June 2018, the Applicant reported to the Recognizance Reporting Office of the Castle Peak Bay Immigration Centre (“CICRRO”) in purported compliance with her recognizance requirement.  While a new recognizance form for the Applicant was being prepared, she suddenly left the CICRRO and disappeared.  Thereafter, the Immigration Department made repeated attempts on 3, 4, 9, 16, 18 July and 7 and 17 August 2018 to contact the Applicant, but all in vain.  Currently, the Applicant is treated as having absconded.

16.  In the meantime, on 18 July 2018, the RAS issued a letter to the DLS requesting the Applicant to submit the completed Form together with supporting documents for her non-refoulement claim on or before 15 August 2018.  By a letter dated 1 August 2018, the DLS informed the RAS that they had no instructions to act for the Applicant.   The RAS then attempted to call the Applicant directly by phone on 1 and 2 August 2018, but could not make contact with the Applicant.

17.  By a letter dated 8 August 2018, the RAS informed the Applicant, inter alia, that if she failed to return the completed Form with all available supporting documents by 15 August 2018, her non-refoulement claim would be treated as withdrawn.  The Applicant did not return the completed Form and supporting documents by the deadline. Accordingly, on 16 August 2018, the Applicant’s non-refoulement claim was treated as having been withdrawn.

DISCUSSION

18.  By Section 53A(1), a person against whom a removal order has been made by the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration may appeal to the Tribunal against a removal order issued against a person on the ground that on the facts of his case –

(aa)   he enjoys the right of abode in Hong Kong; or

(ab)  he has the right to land in Hong Kong by virtue of section 2AAA; or

(b)   he had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong.

19.  None of the grounds referred to in Section 53A(1) on which an appeal against a removal order may lie was applicable to the Applicant’s situation.  It follows that the Immigration Tribunal was bound to dismiss her appeal against the Removal Order under Section 53D.

20.  Section 53C states as follows:

“Where the Tribunal, upon an examination of the written grounds of appeal on which a person appealing under section 53A seeks to rely, is satisfied that the facts or matters on which the appellant is seeking to rely –

(a) would not entitle the appellant to succeed in the appeal …

it may dismiss the appeal without a hearing and in any such case it shall cause written notice of such dismissal to be given to the appellant and to the Director of Immigration.”

21.  Accordingly, the Immigration Tribunal was entitled to dismiss the Notice of Appeal without a hearing, as it did on 13 October 2017.   It is well established that the fact that a person may have made a non-refoulement claim which is pending assessment is no bar to the making of a removal order against that person (see A v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 20 to 25). There is no valid ground shown on the materials before the court to justify any challenge to the Decision by way of judicial review.

22.  The Decision of the Immigration Tribunal is neither unfair nor unreasonable as alleged by the Applicant.  The Applicant’s intended application for judicial review is not reasonably arguable and has no realistic prospect of success.

DISPOSITION

23.  The application for leave to apply for judicial review is dismissed.

24.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Director of Immigration should be entitled to be paid his costs in these proceedings, because:

(1)    the present application clearly lacks any substantive merits;

(2)    the Director of Immigration attended the hearing at the invitation of the court in view of the Applicant’s failure to clearly identify the decision sought to be challenged, or set out the relevant background facts and the grounds relied upon in support of her application in either the Form 86 or the supporting affirmation; and

(3)    the Director of Immigration has provided substantial and helpful assistance to the court.

25.  I therefore make an order that the Applicant shall pay the costs of the Director of Immigration in these proceedings, to be taxed if not agreed.