Islam Hakimul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1415/2019

[2024] HKCFI 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1415 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.The applicant filed Form 86 on 24 May 2019 to apply for leave to apply for judicial review of the Board’s Decision. In his application, the applicant asked for a hearing. He appeared before the Court on 9 August 2023.

3.At the hearing, the applicant spoke another language other than Urdu, which he had signified to the court registry he speaks Urdu when he lodged his application. The court interpreter confirmed that he could understand the applicant, but not fully. The applicant had brought along his friend who is able to communicate with the applicant. His friend was also able to communicate with the court interpreter. For the reasons that follow, I allow the applicant’s friend to assist together with the court interpreter:

(1)  this is an ex parte application and the proceeding is not adversarial;

(2)  the process is not taking evidence from the applicant, but only allowing the applicant to make his submissions to the Court;

(3)  with the assistance of the court interpreter, there seems to be no risk that the applicant’s friend’s expressions would be misunderstood; and

(4)  it will be saving time and costs.

4.Before me, the applicant said that he wished to withdraw his leave application because his problems had been solved. He said that he had submitted a letter for withdrawal of his claim to the Immigration Department. He further said that he wants to return to his country.

5.I had advised the applicant that if he made his application before the Court, he would not be allowed to make further application for leave for judicial review of the Board’s Decision. He confirmed that he understood and that he would proceed with his application for withdrawal of his leave application. There is nothing outstanding in this action.

6.In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

7.Upon the applicant’s application, the leave application is dismissed.

Dated the 22^nd day of February 2024

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

Form CALL-1