Jesurajah Robinson v. Torture Claims Appeal Board

HCAL 1242/2020

[2024] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1242 OF 2020

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 / 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 45-year-old national of Sri Lanka who arrived in Hong Kong on 6 March 2008 as a visitor under a passport of another identity with permission to remain as such up to 20 March 2008 when he did not depart and instead overstayed, and was arrested by police on 15 June 2008. After he was referred to the Immigration Department for investigation whereupon a removal order was issued against him, the Applicant then raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the Sri Lankan authorities for being suspected to be involved with the terrorist organization Liberation Tigers of Tamil Eelam (“LTTE”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.           

2.By a Notice of Decision dated 11 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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.On 25 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 28 March 2019 and 25 June 2019 before the Board with legal representation during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 19 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.    

4.On 19 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his subsequently amended Form with legal representation he put forward various grounds for his intended challenge.

5.However, before his leave application could be heard or dealt with by the Court, the Applicant through his lawyer informed the Court that he and his wife who is a Hong Kong resident were in the process of applying for emigration to the United Kingdom, and therefore sought the Court’s indulgence in the meantime not to proceed with his leave application for judicial review pending the approval of their emigration by the UK Immigration department.

6.On 11 April 2024 the Court was informed by his lawyer that the Applicant and his wife had departed Hong Kong on 6 April 2024 for United Kingdom as confirmed by a letter dated 10 April 2024 from the Director.

7.As such, and as it is stipulated by Section 37ZF (1) of the Immigration Ordinance, Cap. 115 that a non-refoulement claim made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, as has the Applicant, I accordingly dismiss his leave application.      

Dated the 30^th day of April 2024

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