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HCAL682/2017
[2018] HKCFI 516
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 682 of 2017
BETWEEN
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Ali Usman |
Applicant |
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and
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Director of Immigration
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1st Putative
Respondent |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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2nd Putative
Respondent |
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 Woodcock:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge Woodcock):
1. This applicant, a Pakistani national, filed a notice of application for leave to apply for judicial review on 26 September 2017. His claim history is very complicated and I set out a chronology below;
(1) He was arrested by the police on 13 August 2009 for illegally remaining in Hong Kong. He then lodged a torture claim two days later.
(2) The Director of Immigration (“the Director”) rejected his claim on 10 April 2015. By then his claim was taken to be a non-refoulement claim under the Unified Screening Mechanism. The Director rejected his torture claim, persecution claim and BOR 3 claim.
(3) The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) but withdrew it by written representation dated27 November 2015. It said he was safe to return to his home country. On 30 November 2015 the TCAB informed him his appeal/petition was disposed of and finally determined.
(4) The applicant wrote to the TCAB on 4 September 2017 requesting it to reinstate his appeal/petition.
(5) The TCAB wrote to the applicant on 5 September 2017 refusing his request because the board is functus officio; after the board has accepted his withdrawal, it has no power or authority to deal any further with his appeal/petition. It quoted a court authority to support that proposition.
2. His leave application seeks leave to judicial review the Director’s decision dated10 April 2015, two letters the applicant wrote to the Immigration Department dated15 March and 28 April 2016 as well as the letter from the TCAB dated5 September 2017 refusing to reinstate his appeal/petition.
3. The first letter to the Immigration Department dated15 March 2016 exhibited in the affirmation as exhibit B requests the Immigration Department to open a new case for him because his previous case has been refused, it does bear a stamp that reads “removal assessment section 1”. The second letter dated28 April 2016, exhibit C, is a photocopy which bears no stamp states that the applicant wants to apply for BOR 2.
4. There was an oral hearing arranged for this application on 1 March 2018 and the applicant appeared in person. I explained that his letters he wrote could not be subject to a judicial review.
5. In his affirmation he says he received no reply from the Immigration Department to those letters. That is what prompted him to write to the TCAB and ask them to reopen his appeal. He says in the affirmation that his BOR 2 risk claim was never assessed.
6. I asked the applicant during the oral hearing how he remained in Hong Kong from 2016 to 2017 if there was no appeal process pending after 30 November 2015. He replied that he did apply for protection under BOR 2 after 2015 but then was later told that his case was concluded, including his BOR 2. He never appealed the determination of his BOR 2 application.
7. As the applicant wanted leave to judicial review the Director’s decision of April 2015, a decision of almost three years ago, I asked him what reasons he could put forward for the delay in making this application. His explanation was that he was originally going to go home (as evidenced by his written representation of November 2015) but he changed his mind because it was still not safe so he applied for BOR 2 protection. He was late because of the BOR 2 claim. There is no evidence of a BOR 2 claim or decision in the papers; it is not subject to this application.
Leave to apply for judicial review
8. The applicant should have appealed the Director’s decision to the TCAB before he could consider an application for leave to judicial review that decision. He did lodge an appeal/petition almost three years ago but withdrew it. He now seeks to question that decision through this application. The application is, in my view, inappropriate. Moreover, he has presented no grounds against the Director and the applications delay significant. There would be prejudice to the Director after such a lapse of time. I see no question of public importance in this decision or his claim.
9. I see no merit or any ground in his submission that the TCAB was wrong to refuse to hear his appeal 2 years after he withdrew it.
10. This leave application is rejected for a lack of merit.
Dated 16th day of March 2018.
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(Alan Ngan) |
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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 his solicitors must:
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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);
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Sent to the Applicant
on 16/3/2018
Ali Usman
Applicant’s ref. no:
Nil. |
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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 16/3/2018
Director of Immigration
1st Putative Respondent’s ref. no.: QA T/C 918/14 (formerly RBCZ 2150/09)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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ndPutative Respondent’s ref. no.:
USM 1400/15/4/92/P433
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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| 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)). |
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Form CALL-1
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