Mkoko Mariam Ramadhani Mohamed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1429/2021

[2022] HKCFI 2295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1429 of 2021

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 To:

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.   The application to withdraw the application for leave to apply for Judicial Review be refused; and

3.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 15 October 2021 for leave to apply for judicial review of the decision of Hong Kong Immigration Torture Claims Board dated 29 May 2020 (the “Leave Application”).  There is no such entity known as “Hong Kong Immigration Torture Claim.  In her supporting affirmation, she annexed a Notice of Decision of the Director of Immigration (the “Director”) dated 29 May 2020 (the “Notice”) and affirmed that she wished to seek judicial review of that decision.  It is therefore her unequivocal intention to seek leave to apply for judicial review of the Notice of the Director dated 29 May 2020.  Hence, leave was granted to amend the name of the proposed respondent to the Director of Immigration.

2.On 26 April 2022, the Applicant applied by affirmation to withdraw her Leave Application because she wanted to return to her home country; that all her problems there have been solved; and that her father is very sick (the “Withdrawal Application”). 

3.The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

4.Enquiries with the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) revealed that the Applicant had appealed to the Board against the Notice and that the Board had issued its decision dated on 4 June 2021 (the “Decision”) dismissing her appeal.  While the decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. As the above enquiries show, when the Applicant filed her Form 86, she knew her appeal against the Notice had been dismissed by the Board.  Her application is a clear abuse of legal process which ought to be dismissed than to be allowed to be withdrawn.

5.For the above reasons, leave was granted to amend the name of the proposed respondent in the Form 86 to the Director of Immigration; and both the Leave Application as amended and Withdrawal Application are dismissed.

Dated 29^th day of July 2022.

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

[1] [2018] HKCA 549