Spencer James B. v. Torture Claims Appeal Board

Case No.HCAL 2662/2019[2020] HKCFI 3035

Court

High Court CFI

Date03 Dec 2020

Judge—

Case Document

100%Judiciary

HCAL 2662/2019

[2020] HKCFI 3035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2662 of 2019

____________________________

BETWEEN
	Spencer James B.	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Sierra Leone who arrived in Hong Kong on 27 August 2017 with permission to remain as a visitor up to 7 September 2017 when he did not depart and instead overstayed, and on 11 September 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Sierra Leone he would be harmed or killed by his wife and her family and/or the community and/or the authorities for his homosexual conduct and activities.

2.By a Notice of Decision dated 16 August 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his 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.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of being harmed or killed by his perceived enemies upon his return to Sierra Leone due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats or harm being inflicted on him by the community or the authorities despite being exposed by his wife of his alleged homosexuality prior to his departure of Sierra Leone, that hs problem with his wife and her family was a private family dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sierra Leone with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for his perceived enemies to locate him.

4.On 27 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but failed to attend the oral hearing scheduled on 22 May 2019 before the Board without any explanation, and the Board proceeded to deal with his appeal in his absence and on paper. On 3 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 11 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that the decision should be reviewed in his favour but without putting forward any proper ground for his intended challenge.

6.However, before his application could be dealt with by the court, the Applicant on 30 October 2020 wrote to the court requesting to withdraw his application, and on 18 November 2020 he further elaborated that he found the process of his claim taking too long and with an extraordinarily low success rate that he no longer wish to pursue his claim in Hong Kong.

7.In the premises it seems to me appropriate that his application be dismissed rather than withdrawn, and accordingly I accede to his request and dismiss his leave application.

Dated the 3^rd day of December 2020.

	(TAM Kam-man)
	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 his 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 3^rd December 2020 Spencer James B. 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 3^rd December 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13161/18/8/431/SLE5 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2442/18 (Formerly RBCZ/10050/18) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1