Mahamat Zakaria Doud v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 927/2021[2023] HKCFI 1341

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 927/2021

[2023] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 927 of 2021

BETWEEN
	Mahamat Zakaria Doud	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:

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

2. 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 dated 13 May 2021; and (2) his application by way of affirmation filed on 8 December 2022 to withdraw that application (the “withdrawal application”). The proposed respondent named in the Form 86 is “USM” which is not an administrative body known to the Court. As he annexed a copy of the decision of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 13 May 2021 (the “Decision”), it is clear that his intention is to apply for leave to apply for judicial review of that Decision. Hence, leave is granted to amend the Form 86 making the Board the proposed respondent and the Decision as the decision in respect of which relief is sought.

2.The Applicant is a citizen of Chad. He entered Hong Kong lawfully on 5 July 2015. He over-stayed and then surrendered to the Immigration Department on 10 August 2015. Then, he lodged a non-refoulement claim on 6 October 2015. His claim is primarily founded on the basis of (a) the fact that he is a family member of Abbas Koty which plotted a coup d’etat against the current president of Chad; (b) his political opinion; (c) his dealings with Hissein Doudoua and Bishara Doudoua; (d) the heightened risk of persecution; and (e) the indiscriminate violence in the Lak Chad Basin from adherents of Boko Haran. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism; namely the Torture Risk[1], BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds. His claim was dismissed by the Director of Immigration (the “Director”). His appeal against the Director’s decision was dismissed by the Board’s Decision. He then sought leave to apply for judicial review of the Decision.

3.Then, on 8 December 2022, the Applicant applied by way of affirmation to withdraw his leave application. He said he “want cancel [his] case to go back [his] country.”

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 28 March 2023 giving him directions to file an affirmation or statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating:

(i)  whether his problem in his home country had been solved, and if so, how;

(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 stands; and

(iii)  that he made the withdrawal application to withdraw his leave application out of his own free will.

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 that the applications may be justly 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. In the light of the Court’s direction, the Applicant must understand that if he does not respond, his withdrawal application may not be approved. Accordingly, the Court refused his withdrawal application. As he said in his affirmation that he wanted to stop his application for judicial review because he wanted to return to his home country, his affirmation evinced a lack of intention to prosecute his leave application. In the circumstances, 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 19^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 19/5/2023 Mahamat Zakaria Doud 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 19/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7693/17/7/74/TCD1 Director of Immigration Putative Interested Party’s ref. no.: RBCL 3427/15(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