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

HCAL 477/2022

[2024] HKCFI 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 477 OF 2022

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  The applicant filed Form 86 on 15 June 2022 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By affirmation filed on 29 November 2022, the applicant said that he wants to cancel withdraw because he said that his life was no longer in danger and he wanted to return to his country as soon as possible.

4.  There was nothing outstanding in this action.

5.  In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

6.  The application was therefore dismissed.

7.  Form CALL-1 was issued on 10 May 2023, the same day the Order was sealed.

8.  The applicant filed an affirmation on 5 February 2024 to apply to the Court to re-open his application for re-opening his application for leave for judicial review of the Board’s Decision because his family told him it is dangerous for him to return to Pakistan and he will be killed if he returns.

9.  As the Order has been sealed, the Court is functus office, it has no jurisdiction over this matter. The Court of Appeal in Nguyen Quang Hien & Others v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & Director of Immigration [2022] HKCA 1704, Hon Barma and Au JJA, 16 November 2022 held:

“24. … … , the Deputy Judge by the earlier HCAL 1660 Decision has already dismissed their applications on merits and that order has been sealed. He is therefore functus insofar as the leave to apply for judicial application under HCAL 1660 is concerned. There is no jurisdiction for him to consolidate HCAL 1660 (which has already been dismissed) with HCAL 1289 as he sought to do.”

10.  It appears that the applicant may consider applying to the Director for a subsequent claim under section 37ZO of the Ordinance if he can satisfy the Director that he complies with the conditions under that section.

11.  I dismiss his application.