Seiyed Ibrahim Mohamed Anver v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 13/2019

[2021] HKCFI 3882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 13 OF 2019

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 the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong as a visitor on 3/1/2005.  He was allowed to stay until 2/2/2005. He overstayed and was arrested by the police. He was interviewed by the Immigration Department on 29/11/2005. He indicated that he would like to raise a torture claim during the interview.[1]

Background

2.The applicant was from Sri Lanka. He was born on 20/2/1975.  He told the officer in the interview that he was a businessman. He had lost his passport.

3.The applicant claimed that he was in love with the daughter of an army officer. That officer threatened to kill him. He feared that he would be killed by that army officer if refouled. [2]

4.During the interim on 6/12/2016, the applicant wrote to the Director indicating that he wanted to withdraw his non-refoulement claim. The letter was faxed to the Immigration Department.

5.On 7/12/2016, the Director wrote to the applicant. The Director informed him that his case would be closed.

6.On 10/5/2018, the applicant wrote to the Director requesting to re-open his claim. His ground was that he could not go back as he had a problem in Sri Lanka. The Director wrote to the applicant on 15/5/2018 requesting for further information in support of the application to re-open his claim. The deadline was set on 23/5/2018.

7.On 28/5/2018, the Director refused to re-open the applicant’s claim. The applicant had not responded to the Director’s demand. The Director was not satisfied that there had been a change of circumstances which the applicant could not reasonably have foreseen at the time of the withdrawal. All information submitted so far could not increase the prospect of success in the claim. There was no injustice to refuse to re-open. [3]

8.On 8/11/2018, his appeal to the TCAB was dismissed. The adjudicator agreed with the Director. [4]

Judicial Review

9.The applicant filed a leave application on 3/1/2019. In his affirmation, he requested for an oral hearing.

10.This court fixed a hearing on 18/10/2021. During the hearing, the applicant confirmed that he had withdrawn the application in 2016. He had not responded to the request for further information from the Director in 2018. There was no explanation as to this failure. He stressed that his brother would sponsor him to go to Australia but his problem in Sri Lanka had not been solved. He could not go back.

11.The applicant indicated that he had submitted a claim form in 2005 to the Director. This court asked him to file a copy of that form to this court within 2 weeks. This court made enquiry with the Director. It transpired that there was only a record of interview made on 29/11/2005. There was no NCF or a document of similar nature.

12.This court received a bundle of hand-written records of interview on 23/12/2021 from the applicant.[5] It transpired that he was interviewed a number of times from 21/12/2005 to 9/9/2008. These records were mainly clarifications of the answers he made in the previous occasions. They were related to the factual background of his torture claim. They were not a NCF or a claim form. It is not clear what was the outcome of his torture claim.

13.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

14.The applicant confirmed that he had withdrawn his torture claim in 2016. He had not filed further information in support of the application to re-open his claim in 2018. He had not complied with the requirement of s.37ZE (2) of the Immigration Ordinance, CAP 115. I agree with the decision of the TCAB and the Director.

Conclusion

15.In my judgment, there is no error of law or procedure. I agree with the TCAB decision. It is rational. The intended judicial review is not reasonably arguable. There is no prospect of success. I refuse leave for the intended judicial review.

Dated the 30^th day of December 2021.

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