Rezaul Kabir Rony v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 3112/2019[2023] HKCFI 1343

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 3112/2019

[2023] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3112 of 2019

BETWEEN
	Rezaul Kabir Rony	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:

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 18 October 2019 (the “Decision”); and (2) his application by way of affirmation filed on 31 January 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant is a Bangladeshi national. He applied for non-refoulement protection with the Director of Immigration (the “Director”). His claim was refused by the Director. He appealed against the Director’s decision to the Board. His 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 31 January 2023, he filed an affirmation seeking to withdraw his leave application. The reason is he has no problem in his home country and wants to go back to go back home.

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 6 April 2023 giving him directions to lodge a statement 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.”

5.The Court’s letter was returned on 14 April 2023 under a covering letter written by a Ms Ho allegedly on behalf of the Applicant. Ms Ho said that the Applicant had departed Hong Kong on 6 April 2023 and exhibited a copy of the boarding pass in respect of the Applicant’s flight.

6.While there is nothing to suggest that his withdrawal application was made out of his own free will and with a full understanding of the consequence, his agreement to repatriation and departure 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 Rezaul Kabir Rony 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 3782/16/5/200/B511 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9002182/17 (formerly RBCZ 2443/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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