Khan Shamroz v. Director of Immigration

Case No.HCAL 1672/2020[2022] HKCFI 1863

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 1672/2020

[2022] HKCFI 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1672 of 2020

BETWEEN
	Khan Shamroz	Applicant
	And
	Director of Immigration	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 To:

1. Leave to apply for Judicial Review refused; and

2. There be no order made in respect of the withdrawal application on 16 May 2022

Observations for the Applicant (Order by Deputy High Court Judge To):

1.This is the Applicant’s application by Form 86 filed on 17 August 2020 (the “leave application”)for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 August 2020 issued by Yiu Fung Yee on behalf of the Director (the “Notice”). In his supporting affirmation filed on the same date, he annexed a copy of the Notice issued by Yiu Fung Yee. The Applicant’s unequivocal intention was to apply for judicial review of that Notice.

2.On 16 May 2022, the Applicant applied by affirmation “to close” his application for leave to apply for judicial review. The Court understood by “to close” he meant “to bring to a conclusion”, ie to withdraw (the “withdrawal application”). He did not give any reason why he wished to withdraw his leave application.

3.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office pursuant to section 37ZR of the Immigration Ordinance, Cap. 115. The Director’s decision in the Notice is not susceptible to judicial review: Re Moshsin Ali[1]. If he is aggrieved by the decision in the Notice, he may invoke the appeal proceedings under section 37ZR, if he had not already done so. There are no merits in his leave application.

4.Since it is now the Applicant’s wish to withdraw his leave application and in view of the slightly ambiguous nature of his affirmation filed on 16 May 2022, the best course would be to dismiss his leave application on merits. For the above reasons, the Applicant’s leave application is dismissed, and no order shall be made in respect of his withdrawal application.

Dated 22^nd day of June 2022.

	( Allen LEE )
	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 22/6/2022 Khan Shamroz 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 22/6/2022 Director of Immigration Putative Respondent’s ref. no.: L/M (21170) in ImmD RA 7/37/C (Formerly RBCZ/12119/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] [2018] HKCA 549

Cites 1 case

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