Rafiq Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 188/2020[2023] HKCFI 1245

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 188/2020

[2023] HKCFI 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 188 of 2020

BETWEEN
	Rafiq Muhammad	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-Refoulement Claims Petition Office	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 (the “Board”) dated 22 June 2017 (the “Decision”); and (2) his application by way of affirmation filed on 3 January 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant was arrested as an illegal immigrant. He claimed he had sneaked into Hong Kong from the Mainland on 15 July 2013. He lodged his claim for non-refoulement protection by written representation on 3 March 2014. 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 dated 24 August 2015 (the “Notice”), the Director dismissed his claims. 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 3 January 2023, the Applicant applied by way of affirmation to withdraw his leave application. The reasons stated in his affirmation are:

“Withdraw Judicial Review HCAL-188/2020 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 to return to go home I want withdraw my case. Please help me withdraw judicial Review.”

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 and his appeal against the Notice. 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 an affirmation 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 the visa he obtained does not entitle him to non-refoulement protection and 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.”

The letter was returned undelivered because of a misspelling of the address. It was re-sent on 13 March 2023 to the correct address. This time, it was returned marked “refused”, indicating that the postman had made enquiries with the people at the address and was satisfied that the addressee resided at the address but did not wish to accept delivery of the letter.

5.Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered the two applications be determined on paper without an oral hearing.

Discussion and conclusion

6.The Applicant refused to accept delivery of the Court’s letter. He may not know it contains direction related to his withdrawal application. The surrounding circumstances are that the Applicant intended to withdraw his leave application. It may or may not be made out of his own free will as he was under some pressure to return to his home country because of his mother’s illness. He may or may not understand the consequences of the withdrawal. In the circumstances, it may not be appropriate to allow his withdrawal application. One thing that is certain is that he did not wish to proceed with his leave application. He had not advanced any grounds in support of his leave application. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s Decision is regular and there is no suggestion that it was made as a result of error of law or procedural unfairness or was irrational. In the circumstances, the 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 11^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 11/5/2023 Rafiq Muhammad 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 11/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2169/15/9/22/P607 Director of Immigration Putative Interested Party’s ref. no.: RBCL 1562/13(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