Luqman Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1797/2019 on BabelCite. This High Court CFI judgment was delivered on 20 August 2024.
1. The applicant applies for leave to apply for judicial review of the Decisions dated 11 November 2014 and 24 June 2019 respectively of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“the Board’s First Decision and the Board’s Second Decision”).
Cites 2 cases
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HCAL 1797/2019 [2024] HKCFI 1985 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1797 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be dismissed. Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decisions dated 11 November 2014 and 24 June 2019 respectively of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“the Board’s First Decision and the Board’s Second Decision”). 2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, hearing is scheduled on 28 August 2024. However, the applicant has applied for withdrawal of his application. The applicant 3.The applicant is a national of the Pakistan. He arrived in Hong Kong from Macau on 4 March 2014. The Immigration Department declined to allow him to enter. He lodged the non-refoulement claim on the same day. 4.According to the applicant, upon refoulement, he may be harmed by the Ullahs because they want to seize the farmland from him and they had threated to kill him. The Director’s Decisions 5.The Director considered the applicant’s claim in relation to the following risks:
6.By way of the Director’s Notice of Decision dated 30 May 2014 (“the Director’s First Decision”) and Notice of Further Decision dated 20 December 2016 (“the Director’s Second Decision”), the Director rejected the applicant’s claim respectively on the Torture risk, BOR 3 risk, Persecution risk and BOR 2 risk for the reasons that the level of risk of harm from the Ullahs upon his return is low [10]-[11]; state protection will be available to him [12]; internal relocation is viable [13]-[17] and there is no BOR 2 risk. The Board’s Decisions The Board’s First Decision 7.The applicant appealed the Director’s First Decision to the Board. 8.However, by a letter undated and received by the Board on 25 July 2014, the applicant applied to “cancel” his appeal/petition. 9.By a letter dated 25 July 2014, the Board informed the applicant that it had received his letter for cancelling his appeal and that his appeal/petition has been treated “as one that has been disposed of, and consequently it has been finally determined.” The Board stated that no further action would be taken in respect of his appeal. 10.By letters of diverse dates, which the Board received on 14 August 2014, 22 August 2014, 18 September 2014 and his submission dated 22 September 2014 received by the Board on 29 September 2014, the applicant requested the Board to re-open his case. 11.In the letter that the Board received on 22 August 2014, the applicant stated that he made his application for cancelling his appeal under the conditions that his mind was muddled because of fasting. Also, he applied for bail and the officer in the detention centre told him that he had to withdraw his appeal before he could obtain bail. He had then obtained bail and he wanted to re-open his appeal. 12.By the Board’s First Decision, the Board refused his application to re-open his appeal for the reason that he had withdrawn his appeal and the Board would take no further action in respect of his appeal. The Board’s Second Decision 13.By the Director’s Second Decision, the Director rejected the applicant’s claim on BOR 2 risk. 14.The applicant appealed to the Board. However, the applicant was out time. 15.According to the Board, the time for appeal expired on 12 January 2017. The applicant filed his notice of appeal on 26 January 2017. He was out of time for 14 days. The applicant asked for extension of time for the reason that he did not receive the Director’s Second Decision. 16.In the Board’s Second Decision, the Board stated that the applicant had withdrawn his appeal previously. Also, the applicant had moved to a new address without updating the Director. It did not accept the applicant’s explanation for not receiving the Director’s Second Decision. 17.By the Board’s Second Decision, the Board refused to extend time for the applicant to file his appeal against the Director’s Second Decision. Application for leave to apply for judicial review of the Board’s Decision 18.The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s First Decision and the Board’s Second Decision. 19.In his affidavit in support of his application, the applicant specified grounds to challenge the Board’s Second Decision. Since the applicant has applied for withdrawal of the application, those grounds are not relevant. DISCUSSION 20.The question for the Court is whether the Board was right in the Board’s First Decision to refuse the applicant’s application to re-open his appeal for the reason that he had withdrawn or cancelled his appeal; and whether the Board was right not to extend time for the applicant to appeal against the Director’s Second Decision. 21.The Board’s First Decision refused to re-open the applicant’s appeal for the reason that the applicant had withdrawn his appeal. The Board had given its reason as follows:
22.The Board had not addressed the applicant’s reason that he made the withdrawal for the reasons that his mind was muddled because of fasting and because the staff in the detention centre told him that he had to withdraw his appeal before his application for bail would be considered. He withdrew his appeal and bail was granted to him. In other words, his decision to withdraw his appeal was not made voluntarily. Whether his reasons are acceptable is for the Board to consider and decide. If any of his reasons is acceptable, his withdrawal becomes a nullity and the Board should re-open or continue with his appeal. 23.The Board had not made any finding of facts on the above issue. 24.The Court of Final Appeal in Singh Harbans v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2023] HKCFA 43, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Bokhary NPJ, 15 December 2023 at paragraph 8, held:
25.Once the application on the Board’s First Decision is disposed, it is unnecessary to deal with the application on the Board’s Second Decision as the facts cover all the applicable risks. CONCLUSION 26.For the purpose of implementing the directions of the Court of Final Appeal above, and pursuant to Order 1B, rule 1(2) (b) & (l) of the Rules of the High Court[1], I shall adjourn this matter to a date to be fixed pending the Board’s investigation pursuant to paragraph 27 below, and in case the Board maintains its decision that the applicant’s application should be dismissed 27.I refer this matter to the Board to make a finding of the fact as to whether the applicant’s cancellation or withdrawal of his appeal was made out of his volition without any undue influence, which may render his cancellation or withdrawal a nullity. If the Board, for whatever reason, takes the view that the applicant’s appeal should be re-opened, the Board may re-open the appeal and make the decision accordingly. In the same decision, the Board may make a determination on the Director’s Second Decision as well. 28.Whilst this Form CALL-1 is being prepared, we received a letter dated 25 July 2024 from the applicant, in which he applies to withdraw his application, stating his reasons as:
29.There is no evidence that he makes this application other than out of his own volition. 30.Other than this application, there is nothing outstanding in this action. 31.In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:
32.The application is therefore dismissed. Dated the 20th day of August 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 [1] Order 2, r 1(2)(b): adjourn or bring forward a hearing; Order 2, r 1(2)(l): take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. |