Mohammadu Imtiyas Meera Saibu Abdeen v. Torture Claims Appeal Board

HCAL 223/2021

[2023] HKCFI 1610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 223 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 August 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Sri Lanka who entered Hong Kong illegally sometime in 2009 and was arrested by police 4 years later in 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by his girlfriend’s husband and/or her family over their extra-marital affair.  

2.After completing his Non-refoulement Claim Form (“NCF”) in support of his claim but before it could be determined by the Director of Immigration (“Director”), the Applicant through his lawyer from the Duty Lawyer Service (“DLS”) in writing informed the Director of his request to withdraw his non-refoulement claim.

3.By a letter dated 10 May 2016 the Director acknowledged receipt of the Applicant’s request for withdrawal of his claim and confirmed that no further action would be taken in respect of his claim.

4.However, shortly thereafter on 16 May 2016, 7 June 2016 and 8 June 2016 the Applicant in writing to the Director requested to re-open his claim because “some South Asian people had tried to make him problem” and that “he was scared of drug dealers”.              

5.By a Notice of Decision dated 14 June 2016 the Director refused to allow the Applicant to re-open his claim upon finding that he had failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a change of circumstances that could not reasonably have been foreseen by him when he withdrew his claim, and that when taken together with the material previously submitted for the claim could increase the prospect of success of his claim, nor were there any special circumstances that would make it unjust not to re-open his claim under Section 37ZE(2) of the Immigration Ordinance, Cap 115. 

6.On 25 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 May 2017 before the Board during which he gave evidence and answered questions raised of his claim and his appeal by the Adjudicator for the Board.

7.On 16 August 2017 his appeal was dismissed by the Board upon finding that he had failed to give any evidence which may satisfy those requirements under Section 37ZE(2) of the Ordinance as noted above, and that on the factual basis of his claim as contained in his NCF as well as all other evidence contained in those documents in the hearing bundle before the Board that there were no special circumstances which would make it unjust not to re-open his claim.    

8.Some 3 ½ years later on 24 February 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward various grounds or complaints about how his non-refoulement claim had been erroneously assessed or determined but which are clearly and wholly irrelevant to his case for the re-open of his claim that I do not find any of them reasonably arguable for his intended challenge.

9.As noted above, by then the Applicant was seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.As the last day of the 3 month-period for him to file his Form 86 fell on 16 November 2017, the Applicant was therefore more than 3 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as he also failed to attend the hearing of his application, I am unable to see any good or valid reason for his such serious delay.    

12.As for the merits, if any, of his intended application, as noted above that none of his proposed grounds are relevant to his case or were reasonable arguable for his intended challenge, I do not find any merits in his intended application either.

13.Furthermore, by a letter dated 4 May 2023, the Director informed that the Applicant had been deported from Hong Kong on 27 March 2023, and as Section 37ZF(3) of the Ordinance provides that if a person who has left Hong Kong for whatever reason after having given notice to withdraw a non-refoulement claim, that claim must not be re-opened.

14.In the premises, and for the reasons given, there is simply no prospect of success in the Applicant’s intended application for judicial review, and accordingly I dismiss his leave application.

Dated the 19^th day of June 2023

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