Case Document

100%Judiciary

HCAL 2320/2018

[2020] HKCFI 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2320 of 2018

BETWEEN

	Sharma Sonu	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent

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 Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Nepal who arrived in Hong Kong on 25 January 2015, and when he was refused entry by the Immigration Department he raised a non‑refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the Communist Party of Nepal (“Maoist”) for refusing to join their party.

2.By a Notice of Decision dated 2 April 2015 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 16 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and his appeal was dismissed by the Board on 21 July 2015.

4.On 27 July 2015 the Applicant sought leave to apply for judicial review of the decisions of both the Director and the Board under HCAL 139/2015, but his leave application was refused by Hon Fung J on 12 February 2016.

5.By a letter dated 18 January 2017 the Director on his own initiative invited the Applicant to submit within 14 days any additional facts which may be relevant to his non‑refoulement claim on all applicable grounds in particularly any other absolute or non‑derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

6.Upon receiving no additional facts relevant to BOR 2 risk from the Applicant, the Director by a Notice of Further Decision dated 10 February 2017 again rejected the Applicant’s claim on all applicable grounds for non-refoulement protection including BOR 2 risk.

7.On 24 February 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and on 20 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.On 23 October 2018 the Applicant filed his Form 86 in these proceedings for leave to apply for judicial review of the Board’s Second Decision, but on 26 May 2020 he filed an affirmation requesting to withdraw his application because he no longer has any issue with the Board’s Second Decision and that he wants to go back to his home country.

9.In the premises, it would be appropriate that his application for leave to apply for judicial review of the Board’s Second Decision be formally dismissed, and accordingly I hereby so order.

Dated the 4^th day of June 2020.

(Ng Hang-yin)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 4^th June 2020 Sharma Sonu Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4^th June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: BOR 216/17/2/125/N12 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)