Anil Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 922/2021[2023] HKCFI 1251

Court

High Court CFI

Date11 May 2023

Judge—

Case Document

100%Judiciary

HCAL 922/2021

[2023] HKCFI 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 922 of 2021

BETWEEN
	Anil Kumar	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 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 18 June 2021; and (2) his application by way of affirmation filed on 20 February 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant lodged his claim for non-refoulement protection with the Director of Immigration (the “Director”). His 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 30 May 2018, the Director dismissed his claim based on all applicable grounds under the USM. The Applicant appealed the Director’s decision. 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 20 February 2023, the Applicant applied by way of affirmation to withdraw his leave application. The reasons stated in his affirmation are:

“Affirmation for leave to withdraw my case for leave to apply for Judicial Review for my Non-Refoulement claim. I do not wish to follow up my case because I would like to go back to my country in India.”

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, her 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 3 April 2023 giving him directions to lodge a further affirmation confirming, in particular:

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

(ii) that he understands that if his withdrawal application 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 remains in force.

He was also advised that if no affirmation shall have been filed as required, his leave application may be determined on paper and may be dismissed for want of prosecution.

5.In purported compliance with the directions, he filed an affirmation confirming that he applied to withdraw his leave application out of his own free will but did not confirm that he understood that if his withdrawal application is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office remains in force.

Discussion and conclusion

6.There is nothing to suggest that the above omission was unintentional. In the circumstances, the Court did not consider it appropriate to allow his leave application to be withdrawn. Accordingly, the Court proceeded to further process his leave application. Having considered the nature of the leave application 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.

7.Though the Court is not prepared to allow his withdrawal application because of his deliberate refusal to confirm that he understood the consequence of the withdrawal, in the light of the Court’s direction, the Applicant must understand that if he does not so confirm, his leave application may be determined and dismissed for want of prosecution. In his first supporting affirmation, he expressly said that he did not wish to follow up with his case and asked to have his leave application to be withdrawn. Hence, the Court 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 the 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 Anil Kumar 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 11959/18/6/138/IN2380 Director of Immigration Putative Interested Party’s ref. no.: RBCL 1887/15(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