Gurung Gautam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 2414/2019[2024] HKCFI 2929

Court

High Court CFI

Date05 Nov 2024

Judge—

Case Document

100%Judiciary

HCAL 2414/2019

[2024] HKCFI 2929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2414 of 2019

BETWEEN
	Gurung Gautam	Applicant
	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 documents only; or

consideration of documents and Applicant being absent in open court;

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

1. The application for leave to apply for Judicial Review be dismissed; and

2. A copy of this Form CALL-1 and the sealed order shall be sent to the Director with the request that he uses his best endeavour to forward them to the applicant.

Observations for the Applicant:

1.The applicant was an illegal immigrant. He had made non-refoulement claim to the Director of Immigration (“the Director”). The Director refused his claim. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) The Board dismissed his appeal.

2.The applicant’s claim is based on his fear that, if refouled, he will be harmed or killed by his enemies. The Director found that his claim was unsubstantiated. He appealed to the Board. After a hearing, the Board found that the evidence did not support any of the applicable risks and dismissed his appeal.

3.The applicant filed Form 86 on 20 August 2019 to apply for leave to apply for judicial review of the Board’s Decision. The applicant did not raise any specific ground to challenge the Board’s Decision.

4.The Immigration Department informed the Court that the applicant has been removed, which means the applicant has already left Hong Kong.

5.Section 37ZF of the Ordinance provides, inter alia,

“Deemed withdrawal of torture claim on claimant’s departure

(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”

6.Final determination includes the judicial review proceedings[1].

7.There is nothing outstanding in this action. The Court will refuse to grant the relief as it will serve no practical purpose since the applicant has returned to his country[2]. For case management, this application should be dismissed.

8.The application is dismissed.

9.A copy of this Form CALL-1 and the sealed order shall be sent to the Director with the request that he uses his best endeavour to forward them to the applicant.

Dated the 5^th day of November 2024

(M.O. WONG)(Ms)
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 the Applicant’s 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 5/11/2024 Gurung Gautam 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 5/11/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13632/18/9/393/N552 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3026/18 (formerly RBCZ 11929/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] The Court of Appeal in Re: Aioub Ali [2019] HKCA 1329. Hon Lam VP (as he then was), Wong and S T Poon, 2 December 2019, held:

“16. Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final. Final means final in terms of administrative process. However, such statutory provision does not exclude judicial review. In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above.”

[2] The Court of Appeal in AW v Director of Immigration and William Lam CACV 63/2015, Hon Lam VP, Kwan and Poon JJA (as they then were), 3 November 2015 held:

“67. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1).”

Cites 2 cases

Cases cited in this judgment

Aw v. Director of Immigration and Another