Kapil Gill v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 18/2020[2023] HKCFI 1193

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 18/2020

[2023] HKCFI 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 18 of 2020

BETWEEN
	Kapil Gill	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

Leave to apply for Judicial Review be dismissed for want of prosecution.

Observations for the Applicant:

Introduction

1.There are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 26 November 2019 (the “leave application”); and (2) his application by way of affirmation filed on 24 November 2022 to withdraw that application (the “withdrawal application”).

2.The Applicant had lodged a non-refoulement claim with the Director of Immigration (the “Director”). His claim is founded on his fear of danger to his life, if returned to his home country. His claim was dismissed by the Director via his Notice of Decision. His appeal against the Director’s decision was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

3.By a letter received by the Registry on 14 November 2022, the Applicant requested the Court to dismiss his application for judicial review. Then, on 24 November 2022, he formally applied by way of affirmation to withdraw his leave application. In his supporting affirmation, he said he wanted the Court to dismiss his application for judicial review because he was applying to return to his home country.

4.Having regard to his alleged fears, risks and claims for protection and his appeal against the Director’s Notice, the reasons he gave are not proper reasons for withdrawing his leave application. The Court is skeptical about the underlying motive for his withdrawal. To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 28 March 2023 giving him directions to file an affirmation or statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating:

(i)    whether his problem in his home country had been solved, and if so, how;

(ii)   that he understands that if his application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision stands; and

(iii)  that he made the application to withdraw out of his own free will.

5.As at the date of this Form CALL-1, the Applicant had not responded. There is nothing to suggest that he has changed his address or has not received the correspondence. Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

Discussion and conclusion

6.Despite the Court’s directions, the Applicant declined to confirm that his withdrawal application is made under his own free will and that he understands the consequence of the withdrawal. The Court is skeptical of the reason for his non-refoulement claims, his application for leave to apply for judicial review as well as his withdrawal application. The Court does not consider it appropriate to allow his withdrawal application. In the light of the Court’s direction, the Applicant must understand that if he does not respond, his withdrawal application may not be approved. Accordingly, the Court refused his withdrawal application. As the Applicant said in his affirmation that he wanted the Court to dismiss his application for judicial review, his affirmation evinced a lack of intention to prosecute his leave application. In the circumstances, the Court considered it appropriate to dismiss his leave application for want of prosecution.

7.For the above reasons, the Applicant’s withdrawal application and leave application are refused.

Dated 4^th day of May 2023.

	( 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 4/5/2023 Kapil Gill 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 4/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: Nil Director of Immigration Putative Interested Party’s ref. no.: RBCL 1096/13(CZ) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1