Hussain Sarfraz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 2032/2020[2023] HKCFI 1390

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 2032/2020

[2023] HKCFI 1390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2032 of 2020

BETWEEN
	Hussain Sarfraz	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative 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 (Order by Deputy High Court Judge To):

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 9 July 2020 (the “Decision”); and (2) his application by way of affirmation filed on 10 January 2023 to withdraw that application (the “withdrawal application”).

2.The Applicant is a Pakistani national. He sneaked into Hong Kong from Shenzhen at the end of October 2015. He lodged a claim for non-refoulement protection claiming that if refouled to Pakistan he will be killed or seriously harmed by his cousin for political reasons. His claim was refused by the Director of Immigration (the “Director”). His appeal against the decision of the Director was refused 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 10 January 2023, he filed an affirmation seeking to withdraw his leave application because his independent visa application has been granted. The visa as such does not entitle him to non-refoulement protection which he had claimed. To ensure that he understands the above and the consequence of the withdrawal, the Court wrote to him on 1 March 2023 giving him directions to lodge a statement within 14 days confirming:

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

(ii) that he understands that the visa he obtained does not entitle him to non-refoulement protection and 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 in the Notice of Decision remains in force.

He was also informed that 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.

4.The Court’s letter was returned on 28 March 2023. Upon enquiries with the Immigration Department, the Court was informed that the Applicant had been removed on 27 January 2023, shortly after filing the withdrawal application. 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, it evinced a lack of intention to prosecute his leave application. In the circumstances, the Court considered it appropriate to refuse his withdrawal application dismiss his leave application for want of prosecution.

Dated 25^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 25/5/2023 Hussain Sarfraz 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 25/5/2023 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10580/18/3/32/P2036 Director of Immigration Putative Interested Party’s ref. no.: RBCL 3056/15(CZ) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1