Sanaullah Khan v. The Director of Immigration

HCAL 100/2002

[2018] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 100 OF 2002

________________________

________________________

___________________

J U D G M E N T

___________________

1.The present application for judicial review was commenced on 15 March 2002. By the application, the Applicant, a torture claimant, sought to challenge the decisions of the Director of Immigration (“the Director”) to (i) make a removal order against him on 14 February 2002, and (ii) execute the removal order, on the ground that the Director failed to himself assess whether the Applicant would be subjected to torture if he was returned to his home country, relying on the findings of the UNHCR instead.

2.On 15 March 2002, Hartmann J (as he then was) granted the Applicant leave to apply for judicial review, and an interim injunction to restrain the Director from removing the Applicant from Hong Kong pending the determination of the application for judicial review.  The substantive application for judicial review was originally fixed to be heard on 11 November 2002, but was adjourned sine die with liberty to restore by Deputy High Court Judge A Cheung (as he then was) on 7 November 2002 pending the judgment of the Court of Appeal in Prabakar v Secretary for Security in CACV 211/2002 and in view of the fact that the Director had indicated that he would reconsider the Applicant’s claim under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984.

3.As is well known, the ground of challenge raised in this application for judicial review was authoritatively determined by the Court of Final Appeal in Prabakar v Secretary for Security (2004) 7 HKCFAR 187.

4.The Applicant’s torture claim was eventually assessed, and refused, by the Director on 22 November 2011.  His petition to the Chief Executive against the Director’s refusal of his torture claim was rejected by an adjudicator on 21 December 2011.  The Applicant’s claim for non-refoulement protection on grounds other than torture was refused by the Director on 20 June 2017 under the Unified Screening Mechanism.  The Applicant did not petition to the Non-refoulement Claims Petition Office against that decision of the Director.

5.On 22 November 2017, the Director, acting though the Department of Justice, wrote to the Applicant proposing that the present application for judicial review be dismissed by consent on the ground that it had become academic in view of the aforesaid intervening circumstances.  The Applicant did not reply to the Director’s proposal.

6.On 12 April 2018, the Director issued a summons seeking the following orders:-

(1)   the substantive hearing of the application for judicial review be restored;

(2)   the interim injunction granted by Hartmann J be discharged; and

(3)   the application for judicial review be dismissed.

DISCUSSION

7.The substantive hearing of the application for judicial review was adjourned sine die with liberty to restore by the court on 7 November 2002 pending (i) the Court of Appeal’s judgment in Prabakar, and (ii) the Director’s reconsideration of the Applicant’s torture claim.  Prabakar has now been determined by the Court of Appeal and the Court of Final Appeal, and the Director has re-considered the Applicant’s torture claim and assessed his non-refoulement claim based on other grounds.  There is no reason for not restoring the substantive hearing of the application for judicial review.

8.In so far as the interim injunction granted by Hartmann J is concerned, it has also been overtaken by the events mentioned above.  The Applicant has not challenged the adjudicator’s rejection of his petition to the Chief Executive against the Director’s refusal of his torture claim, or petitioned against the Director’s decision to refuse his non-refoulement claim based on other grounds.  The removal order against the Applicant is still valid, and there is no further impediment to his removal from Hong Kong.  In my view, the interim injunction ought to be discharged.

9.Lastly, in relation to the application for dismissal of the application for judicial review, I consider that the issue raised in this application has become academic and it should accordingly be dismissed. 

DISPOSITION

10.For the foregoing reasons, I make an order in terms of paragraphs 1 and 2 of the Director’s summons dated 12 April 2018.

11.I make no order as to the costs of the Director’s summons.

12.I shall now adjourn the proceedings into open court for its formal disposition.

[The proceedings were adjourned into open court]

13.The application for judicial review is dismissed with no order as to costs, save that the Applicant’s own costs, including all costs reserved, shall be taxed in accordance with legal aid regulations.

The Applicant was absent

Mr Sunny Li, SGC (Ag.), instructed by Department of Justice, for the Respondent