Khan Israil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 363/2021[2023] HKCFI 1182

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 363/2021

[2023] HKCFI 1182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 363 of 2021

BETWEEN
	Khan Israil	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:

1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2. The application for 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 (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office dated 19 February 2021 and the decision of the Director of Immigration dated 16 December 2018; and (2) his application by way of affirmation filed on 18 January 2023 to withdraw that application (the “withdrawal application”). The correct dates of the Board's Decision and the Director's Notice are 16 February 2021 and 27 April 2020 respectively. Leave to amend the dates in the Form 86 as aforesaid is granted.

2.The Applicant entered Hong Kong illegally by boat on 31 October 2019, and surrendered to Immigration Department on 6 November 2019. He lodged his claim for non-refoulement protection. His claim was assessed on all four applicable grounds available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds. By his Notice of Decision, the Director dismissed his claim on all four applicable grounds under the Unified Screening Mechanism. The Applicant appealed to the Board. His appeal was dismissed by the Board’s Decision. This is the decision in respect of which the Applicant sought a judicial review under the leave application.

3.Then, on 18 January 2023, the Applicant applied by way of affirmation to withdraw his leave application. The reasons stated in his affirmation are:

“Withdraw Judical Review HCAL-363/2021. I want to go back to my home country. All my Problem now finished now my Problem my mother is very sick as soon as possible I want return to go home, now I want to withdraw my case. Please help me.”

4.That is only a statement of his intention to withdraw his leave application, but is equivocal as to the underlying reason for the withdrawal in light of his alleged fears, risks and claims for protection, his appeal against the Notice and the grounds of his application for leave to apply for judicial review of the Decision. 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 1 March 2023 giving him directions to lodge a statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating in particular:

(i)    that his application to withdraw the application for leave to apply for judicial review is made out of his own free will;

(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 remains in force; and

(iii)  if no affirmation shall have been filed as required, his application for leave to apply for judicial review may be determined on paper and may be dismissed for want of prosecution.”

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.

7.In the light of the Court’s direction, the Applicant must understand that if he does not respond, his leave application may be determined or dismissed for want of prosecution. His withdrawal application also evinces a lack of intention to prosecute his leave application. The Court therefore considered it appropriate to dismiss his leave application for want of prosecution.

8.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 Khan Israil 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.: USM 16869/20/4/35/P3311 Director of Immigration Putative Interested Party’s ref. no.: RBCL 1747/19(CZ) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol