Naikhaw Wipada v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 972/2022[2023] HKCFI 1232

Court

High Court CFI

Date09 May 2023

Judge—

Case Document

100%Judiciary

HCAL 972/2022

[2023] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 972 of 2022

BETWEEN
	Naikhaw Wipada	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 (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office dated 25 July 2022; and (2) her application by way of affirmation filed on 17 February 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant lodged her claim for non-refoulement protection on 15 June 2021. Her claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely, Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds. By his Notice of Decision dated 26 August 2021, the Director dismissed her claim based on all applicable grounds under the Unified Screening Mechanism. The Applicant appealed to the Board. Her 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 17 February 2023, the Applicant applied by way of affirmation to withdraw her leave application. The reasons stated in her affirmation are:

“I write this Affirmation to know the Court that I want to withdraw my case because the problem which I have in my country was solved and I want to return back to my country. So its my kindly request to the Court to please withdraw my case as soon as possible.”

4.That is only a statement of her intention to withdraw her leave application, but is equivocal as to the underlying reason for the withdrawal in light of her alleged fears, risks and claims for protection, her appeal against the Notice and the grounds of her application for leave to apply for judicial review of the Decision. To ensure that her decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that she will be safe if returned to her home country, the Court wrote to her on 1 March 2023 giving her directions to lodge a statement within 14 days of the date of the letter setting out her grounds for withdrawing her leave application, stating in particular:

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

(ii)   that she understands that if her application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing her 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, her 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 she has changed her 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 justly determined on paper without an oral hearing.

Discussion and conclusion

6.Despite the Court’s directions, the Applicant declined to confirm that her withdrawal application is made under her own free will and that she understands the consequence of the withdrawal. The Court is skeptical of the reason for her non-refoulement claims, her application for leave to apply for judicial review as well as her withdrawal application. The Court does not consider it appropriate to allow her withdrawal application.

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

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

Dated the 9^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 9/5/2023 Naikhaw Wipada 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 9/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 18675/21/9/27/TH99 Director of Immigration Putative Interested Party’s ref. no.: RBCL 1645/20(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