Maicl Nagi Damyan Tadros v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 2407/2018[2020] HKCFI 706

Court

High Court CFI

Date07 May 2020

Judge—

Case Document

100%Judiciary

HCAL 2407/2018

[2020] HKCFI 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2407 of 2018

BETWEEN

	Maicl Nagi Damyan Tadros	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

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;

Order by Deputy High Court Judge K.W. Lung:

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.By summons dated 23 September 2019, the applicant applied for withdrawing his application for leave to apply for judicial review against the Board’s Decision, the reason being that he had already obtained a Refugee Certificate issued by the United Nations High Commissioner for Refugees.

The applicant

3.The applicant is a national of Egypt. He came to Hong Kong together with his son and daughter on 16 August 2016. They were permitted to stay as visitors until 14 November 2016. They overstayed and they surrendered to the Immigration Department on 15 November 2016.

4.He claimed that if refouled, he would face ill-treatment or even killed by the Muslim extremists in Egypt. He and his children therefore lodged non-refoulement claim with the Director.

5.Briefly, the reasons for their claims are that he and his wife were Christians. However, his wife suddenly disappeared and ever since was never seen again. Two men came to see him, telling him that his wife had converted into Muslim and she would divorce him. She claimed custody of the children as they would be converted into Muslims. He refused to believe the two men without seeing his wife. These two men had attempted to take away the children by force. He raised objection and struggled with them. Since the neighbours came around, he managed to escape with his children. He moved to some other places with his children. However, they were traced by the two men, who were attempting to take away the children. Ultimately, he came to Hong Kong with his children. They surrendered to the Immigration Department.

The Director’s Decision

6.The Director considered their applications in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.The Director refused their claims for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant and his children appealed to the Board against the Director’s Decision. The Board found that the children had a well-founded fear of being persecuted in Egypt for reason of their religion in circumstances where neither State protection nor internal relocation were available. The Board refused the applicant’s appeal and agreed with the Director.

Application for leave to apply for judicial review

9.The applicant filed Form 86 dated 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

10.Now the applicant has applied to withdraw his application because he has obtained a Refugee Certificate for his protection.

CONCLUSION

11.In the circumstances, there is no necessity for his application to continue. Accordingly, I dismiss his application.

Dated the 7^th day of May 2020

	(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:
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)).		Sent to the Applicant on 7/5/2020 Maicl Nagi Damyan Tadros Applicant’s ref. no: Nil.		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 7/5/2020 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8479/17/9/151/E69; USM 8480/17/9/152/E70; USM 8481/17/9/153/E71 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1