Nurhayati Rasiman Samad and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 2435/2020[2023] HKCFI 1253

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 2435/2020

[2023] HKCFI 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2435 of 2020

BETWEEN
	Nurhayati Rasiman Samad	1^st Applicant
	Nurhayati Rasiman Samad Alisha	2^nd Applicant
	Nurhayati Rasiman Samad Arsha	3^rd 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 Applicants’ 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 23 September 2020 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 May 2019 refusing their application for non-refoulement protection (the “Notice”); and (2) the 1^st Applicant’s application by way of affirmation filed on 27 October 2022 to withdraw that application (the “withdrawal application”).

2.The Applicants are Indonesia nationals. The 1^st Applicant is the mother of the 2^nd and 3^rd Applicants. They lodged their claim for non-refoulement protection with the Director. Their 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 dated 14 May 2019, the Director dismissed their claim. The Applicants appealed to the Board. Their appeal was dismissed by the Board’s Decision. This is the decision in respect of which the Applicants sought a judicial review under the leave application.

3.Then, on 27 October 2022, the 1^st Applicants filed an affirmation on behalf of all the Applicants seeking to withdraw their leave application. The reason is they want to go back to Indonesia.

4.In the course of the Court’s enquiries, the Court was informed that the Applicants had been repatriated on 24 November 2022. While there is nothing to suggest that their withdrawal application was made out of their own free will and with a full understanding of the consequence, their agreement to repatriation evinced a lack of intention to prosecute their leave application. In the circumstances, the The Court considered it appropriate to dismiss their leave application for want of prosecution.

5.For the above reasons, the Applicants’ 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 Applicants: 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 Applicants on 11/5/2023 Nurhayati Rasiman Samad Nurhayati Rasiman Samad Alisha Nurhayati Rasiman Samad Arsha 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 16513/19/11/71/I1791 USM 16514/19/11/72/I1792 USM 16665/20/1/27/I1815 Director of Immigration Putative Interested Party’s ref. no.: RBCL 1870/13(CZ) RBCL 509/18(CZ) RBCL 1412/19(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