Mohammed Ali Alias Mohammad Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1265/2021[2024] HKCFI 3157

Court

High Court CFI

Date13 Nov 2024

Judge—

Case Document

100%Judiciary

HCAL 1265/2021

[2024] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1265 of 2021

BETWEEN
	Mohammed Ali Alias Mohammad Ali	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 documents only; or

consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1. Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2. Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 11 September 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection (the “Decision”).

Discussion and conclusion

2.On 15 October 2024, the Applicant applied by affirmation to withdraw his leave application (the “withdrawal application”) asserting that it is now safe for him to return to his home country and that he wishes to return. To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 24 October 2024 (the “directions letter”) to file an affirmation or a statement confirming:

(a)  that his withdrawal application is made out of his own free will;

(b)  that he will be safe to return to his home country; and

(c)  that he understands that if his withdrawal application is approved, the Decision of the Board dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection remains in force.

He was also advised that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless he informs the Court of his intention to proceed with the leave application within 14 days of the directions letter.

3.Fourteen days have lapsed since the date of the directions. As at the date of this Form CALL-1 the Applicant has not filed any affirmation or statement or responded. In the light of the Court’s directions, the Applicant must understand that if he does not respond, his withdrawal application may be refused and his leave application may be determined or dismissed for want of prosecution. His withdrawal application also evinces a lack of intention to prosecute his leave application.

4.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no apparent errors of law or procedural unfairness in the Decision or in the making of the Decision. The Decision is not Wednesbury unreasonable or irrational. The Court therefore considered it appropriate to refuse his withdrawal application and dismiss his leave application for want of prosecution.

Dated the 13^th day of November 2024

( Seline Sze )
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 13/11/2024 Mohammed Ali Alias Mohammad Ali 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 13/11/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 14320/18/11/163/B1672 Director of Immigration Putative Interested Party’s ref. no.: Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1