Shah Nawaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2410/2019

[2025] HKCFI 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2410 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the direction of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) by letter dated 16 April 2019 (“Board’s Direction”). In the letter, the Board informed the applicant that it had received the applicant’s letter dated 12 February 2019 to apply for withdrawal (“Withdrawal Application”) of his appeal/petition against a decision of the Director of Immigration (“Director”) dated 28 November 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim. In the Board’s Direction, the Board directed that the applicant’s appeal/petition against the Director’s Decision was withdrawn, and it was confirmed.

2.In Form 86, the applicant named the Board and the Director together as the proposed respondent(s). As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 2 January 2025. A notice of hearing with a reminder of the consequence of absence[1] dated 9 December 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number on the day before the hearing and at the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.The background as taken from the Director’s Decision and the Board’s Direction referred to above can be briefly stated as follows.

6.The applicant is a national of the Pakistan. He came to Hong Kong on 22 March 2012 as a visitor and was allowed to stay until 5 April 2012. Upon the expiry of his visa, he overstayed. On 20 December 2012, he was arrested by police. He was later convicted and sentenced to 2 months’ imprisonment for the offence of breach of condition of stay. On 10 June 2014 and 2 May 2019, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on a fear that if refouled, he would be harmed or killed by a dispute with a man named Farooq as his family refused to sell the family land at a price much lower than the market value.

7.Farooq was a member of the Provincial Assembly and belonged to the Nawaz Shareef’s Party. It was the applicant’s case that he had great influence over the authority in the applicant’s area due to his senior position in the politics. Farooq had expressed interest in acquiring the applicant’s family land at a lower price. However, the applicant’s family refused to hand over or sell the land in many occasions, leading to verbal arguments and even physical fights.

8.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low and that the problem was of a private nature. It was found that there was no evidence suggesting that the government or public officials were involved. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.On 29 March 2019, after the Board had received the Withdrawal Application, it wrote to the applicant seeking clarification of the Withdrawal Application. The Board did not receive any reply. In the Board’s Direction, the Board stated that it was satisfied that the Withdrawal Application was freely sought, and that the applicant understood the consequences of the withdrawal. It also considered that there was good reason for the Withdrawal Application as the applicant considered it was safe to return home.

Discussion and conclusion

10.In the applicant’s Form 86, the applicant stated, among other things, that he had not requested for the withdrawal of his appeal to the Board as he did not want to go home. In his supporting affirmation of the same date, he deposed that the Director and the Board were unreasonable and that they had failed to consider all the matters raised in his claim.

11.According to the Board’s Direction stated in [8] above, the Board had accepted that the Withdrawal Application had been freely made, and that there was good reason for the applicant to withdraw the appeal. Four months later, the applicant in the Leave Application alleges that he never made any request to the Board to withdraw the appeal. Thus, the applicant is impugning the validity of the Withdrawal Application. The issue of whether an appeal to the Board has been validly withdrawn is a jurisdictional matter for the Board to determine: see Hussain Tasawar v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567.

12.Since the validity of the Withdrawal Application remains extant, the Leave Application is procedurally improper. In any event, not only the Leave Application was filed beyond the required time limit of 3 months, the applicant has not put forth any grounds to challenge the validity of the Withdrawal Application or any explanation for the late filing of the Leave Application.

13.In the circumstances, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

14.The Form 86 is amended on the court’s own motion.

15.The Leave Application be dismissed.

Dated the 7^th day of February 2025

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