Shahzad Umar v. The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1557/2018

[2019] HKCFI 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1557 of 2018

BETWEEN

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Pakistani national. The applicant entered to Hong Kong illegally from China by boat on 2 October 2014. He was arrested by police and was referred to the Immigration Department for further investigation. He lodged a non-refoulement claim on 8 January 2015.

3.He claimed that if he was to return to Pakistan, he would be harmed or killed by the people from Shias since he belonged to Wahabi.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

5.By Notice of Decision dated 28 August 2017 (“the Director’s Decision”), the Director rejected his application for the reason that his non-refoulement claim was not substantiated.

Appeal to the Board and withdrawal

6.The applicant appealed to the Board on 11 September 2017.

7.On 17 April 2018, the Board received a letter dated 28 March 2018 from the applicant addressed to the Director that he wanted to withdraw his non-refoulement claim. The Board took this letter of withdrawal as the application to withdraw the appeal as well.

8.On 18 April 2018, the Board wrote to the applicant and enquired his intention of his application for withdrawal of his appeal. The Board did not receive his reply by 25 April 2018.

9.The Board by its letter dated 27 April 2018 confirmed that his appeal was withdrawn.

10.By another letter dated 30 July 2018, the applicant applied to re-open his appeal.

11.On 1 August, 2018, the Board refused his application (“the Board’s Decision”).

Application for leave for judicial review

12.By Form 86 dated 6 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.

13.In his affirmation in support of his application dated on 6 August 2018, in which the applicant did not set out any reasons.

Hearing before this Court

14.On 16 January 2019, the applicant attended this Court.

15.He said in the hearing that he had made the previous withdrawal application because he wanted to go back to his own country. However, he had been diagnosed to have cardiac problem. His mother advised him to stay in Hong Kong for medication. Subsequently, he lost contact with his mother, who remains in Pakistan. He wished to reopen his case in any event.

DISCUSSION

16.If the claimant applies to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office to withdraw the appeal and the Board accepts it, the Board becomes functus officio and it has no further power to re-open the claimant’s appeal. Hussain Tasawar v Betty Kwan, Adjudicator of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Director of the Immigration as interested party, HCAL 20/2015, 17 March 2017. See the paragraphs below:

“40.  Therefore, though the appeal of HT has not been determined on its merits, it was disposed of by his withdrawal of the same and it follows that HT’s claim, which was rejected at the first tier, is deemed to be finally determined within the meaning of section 37V(2).

41.  Further, once the withdrawal of HT’s appeal was accepted by the Letter, his appeal has not gone into a state of suspended animation but simply ceased to exist. Section 16 of Schedule 1A is inapplicable as the appeal is no longer pending to be heard and determined by the Board.”

CONCLUSION

17.The Board was correct to refuse his application to reopen his appeal. Accordingly, I dismiss the applicant’s application for leave for judicial review the Board’s Decision.

Dated the 15^th day of February 2019

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