Fouda Ayman Ali Mahmoud and Others v. Torture Claims Appeal Board

Case No.HCAL 84/2019[2020] HKCFI 2345

Court

High Court CFI

Date21 Sep 2020

Judge—

Case Document

100%Judiciary

HCAL 84/2019

[2020] HKCFI 2345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 84 of 2019

BETWEEN

	Fouda Ayman Ali Mahmoud	1^st Applicant (withdrawn)
	Nirmin Mohamed Ali Hassan Amer	2^nd Applicant
	Nouran Ayman Ali Mahmoud Fouda	3^rd Applicant
	Rawan Ayman Ali Mahmoud Fouda	4^th Applicant
	Hafsa Ayman Ali Mahmoud Fouda	5^th Applicant
	Rodina Ayman Ali Mahmoud Fouda	6^th Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The 2^nd to 6^th Applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

1.The Applicants are a couple and their four children from Egypt who came to Hong Kong separately between 2010 and 2013 as visitors when they subsequently overstayed and jointly raised a non-refoulement claim on the basis that if they returned to Egypt they would be harmed or killed by the security service of once ruling party National Democracy Party over the 1^st Applicant’s suspected past association with the Islamic organization Muslim Brotherhood.

2.By his decisions dated 2 September 2016 and 4 May 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, but on 29 May 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

4.On 9 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or the supporting affirmation.

5.However, before their application could be dealt with by the court, the 1^st Applicant on 30 June 2020 applied to withdraw his own leave application, and on 7 July 2020 it was so withdrawn by order of this court, while the remaining Applicants were also subsequently removed from Hong Kong by the Immigration Department and repatriated to Egypt.

6.Accordingly, and pursuant to section 37ZF(1) of the Immigration Ordinance which provides that a non-refoulement claim made by a claimant must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, I order that the leave application of the remaining five Applicants be dismissed.

Dated the 21^st day of September 2020.

(NG Hang-yin)
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 Applicants: If leave has been granted, the Applicants or their 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 Applicants propose to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 21^st September 2020 The 1^st Applicant: Fouda Ayman Ali Mahmoud The 2^nd Applicant: Nirmin Mohamed Ali Hassan Amer Fouda The 3^rd Applicant: Nouran Ayman Ali Mahmoud Fouda The 4^th Applicant: Rawan Ayman Ali Mahmoud Fouda The 5^th Applicant: Hafsa Ayman Ali Mahmoud Fouda The 6^th Applicant: Rodina Ayman Ali Mahmoud Fouda Applicants’ 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 21^st September 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. nos.: USM 4889/16/9/268/E6 USM 4890/16/9/269/E7 USM 4891/16/9/270/E8 USM 4892/16/9/271/E9 USM 4893/16/9/272/E10 USM 4894/16/9/273/E11 Director of Immigration 2^nd Putative Respondent’s ref. no.: Nil. Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1