AZMAT ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2873/2019

[2023] HKCFI 3308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2873 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 oral submissions by the Applicant in open court;

1.  Stay under section 15 and Regulation 7A of the Legal Aid Ordinance is lifted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) made by Ms Chrissie Yau dated 13 August 2019 (the “Decision”).

2.  The Applicant is currently detained under the Immigration Ordinance pending removal from Hong Kong. On 20 October 2023, presumably shortly after he was detained, he applied for legal aid. In the normal course, his leave application shall be stayed until 1 December 2023, unless the court directs otherwise. Having read the Decision and the papers, the Court was able to form a strong provisional view that the Board had not made the decision sought to be reviewed and even if it had his leave application has no prospect of success. Thus, despite the usual legal aid stay, the Court scheduled an oral hearing on 27 November 2023 for expediency reasons to ascertain from him the decision in respect of which he is seeking to judicially review and to explain to him the grounds on which he may apply and then adjourned to 4 December 2023 pending the outcome of his legal aid application.

3.  As at the hearing on 4 December 2023, his legal aid application was still pending. In reply to the Court’s invitation to make submissions as to why the proceedings should continue to be stayed, the Applicant asked for two to three months to wait for evidence from his home country. He said he had the evidence, but it was lost when he was arrested by the police in 2022. He was unspecific and evasive about the nature of evidence he had in mind. In any event, having regard to the decision which he sought to review, any evidence from his home country would be of no assistance. Furthermore, he did not apply for legal aid when he filed his leave application but waited until he was held in immigration detention. His legal aid application bears the hallmark of delaying his refoulement. For expediency reasons, the Court decided to lift the legal stay and hear his leave application. If he can disclose any arguable grounds in support of his application, this Court shall defer its decision pending the outcome of his legal aid application. If legal aid is granted, the Court shall hear legal arguments from his counsel. For reasons as explained below, the Applicant failed to disclose any arguable grounds for judicial review.

The Applicant’s case and the Director’s decision

4.  The Applicant’s claim for non-refoulement protection is founded on his fear of being harmed or killed by his wife’s family for having eloped with her and married her against the wish of her parents. His risk was heightened by the fact that his wife’s parents are associated with and assisted by a powerful member of Pakistan Muslim League (“PML(N)”) and of the National Assembly, while he is a member of the opposing Pakistan People’s Party (“PPP”).

5.  The immigration officer acting on behalf of the Director assessed the Applicant’s claim on the basis of the case as he asserted. He assessed the risk of harm which the Applicant would face on his return to Pakistan to be low and found that he could minimise or avoid the risk by seeking state protection and internal relocation. He therefore refused the Applicant’s claim on all applicable grounds under the Unified Screening Mechanism.

Factual background leading to the leave application

6.  This leave application was filed on 30 September 2019 before Section 37ZTA of the Immigration Ordinance came into force. Section 37ZTA is therefore not applicable to this leave application. The legal principles applicable to the issues raised by this leave application are the ordinary common law principles.

7.  Enquires with the secretariat of the Board revealed that the Applicant had filed a Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 January 2016 and Notice of Further Decision dated 24 February 2017 refusing his application for non-refoulement protection. Then by a letter dated 15 February 2019, he applied to the Board to withdraw his appeal. Having satisfied itself that his application to withdraw the appeal was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for the proposed withdrawal, namely that the Applicant considered it safe to return to his home country, the Board gave direction that the appeal be withdrawn. The decision of the Board was conveyed to the Applicant by a letter dated 25 February 2019 from the secretariat of the Board. The Applicant’s attention was also drawn to the fact that his appeal had been disposed of and finally determined.

8.  Then, on 7 August 2019, six months later, the Applicant wrote to the Board requesting to re-open his case. By a letter dated 13 August 2019, Ms Chrissie Yau wrote on behalf of the Board to the Applicant informing him that his appeal had been disposed of and finally determined and no further action will be taken by the Board in respect of his appeal. The decision in this letter is the Decision which the Applicant now seeks to judicially review. But on the fact, no decision had been made by the Board on 13 August 2019. What Ms Chrissie Yau did by her letter dated 13 August 2019 was to inform the Applicant or draw his attention to the decision made by the Board allowing his application to withdraw the appeal conveyed to him in its earlier letter dated 25 February 2019. Thus, “[the Decision] made by Ms Chrissie Yau dated 13 August 2019” which the Applicant seeks to review does not actually exist.

Grounds of application

9.  The grounds of the Applicant’s application for judicial review as stated in his supporting affirmation are:

“I am the applicant herein. In the order give to the court a more complete picture about my case I give to immigration department voluntry (sic) I am going back to Pakistan unfortunly (sic) my opposite (sic) party in Pakistan now they can’t compromised that’s why I cannot go back to Pakistan I am requested court could you please save my life bundle of thanks. Marked exhibit A total2 Pages”

10.  Despite his broken sentence and spelling errors, it is clear from the above statement that he withdrew his appeal voluntarily because he or PPP had reached compromise with PML(M) so that he could safely return to Pakistan, but his enemies or PML(M) reneged from the agreement.

Discussion

11.  As analysed above, the Decision which the Applicant seeks to review does not exist. On this ground alone, the Applicant’s leave application may be refused for want of subject matter. If the Applicant really wishes to review the legality of the Board’s decision allowing his withdrawal, the decision conveyed in the secretariat’s letter dated 25 February 2019 is the decision he should seek to review. Should the Court amend the leave application to give effect to his intention?

12.  In Ali Usman[1], the Court of Appeal approved the judgment of Deputy High Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[2] that where, as in the present case, the applicant sought to re-open an appeal which he had withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision. Where this is not the case, the withdrawal is a nullity, the appeal remains extant and may be re-opened. Otherwise, there is nothing to be re-opened. The present case is on all fours with HT (Hussain Tasawar) v Betty Kwan. The Applicant’s supporting affirmation confirmed that he withdrew his appeal voluntarily, that he understood the consequence of the withdrawal and that there was good reason for the withdrawal, ie that it was safe for him to return to Pakistan. Despite he now claims there are changes in circumstances in Pakistan, there is no basis to challenge his withdrawal is a nullity and to argue that the appeal is still extant and may be re-opened. Thus, even if the leave application is amended to include the Board’s decision on 25 February 2019, it still has no prospect of success. It would therefore serve no purpose to make the amendment.

Conclusion

13.  For the above reasons, the leave application has no prospect of success. The stay under Section 15 and Regulation 7A of the Legal Aid Ordinance is therefore lifted as it would serve no purpose; and the leave application is refused.

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

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