FESETAN RUDY FOSSOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2206/2019

[2023] HKCFI 1169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2206 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;

Leave to apply for Judicial Review be dismissed for want of prosecution.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  There are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office dated 26 July 2019; and (2) his application by way of affirmation filed on 5 January 2023 to withdraw that application (the “withdrawal application”).  

2.  The Applicant last arrived in Hong Kong on 12 June 2013.  He overstayed and was arrested on 20 January 2015.  Then he lodged his claim for non-refoulement protection.  His claim was assessed on all four applicable grounds available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds.  By his notice of decision dated 27 February 2019, the Director dismissed his claims.  The Applicant appealed to the Board.  His appeal was dismissed by the Board’s Decision.  This is the decision in respect of which the Applicant sought a judicial review under the leave application.

3.  Then, on 5 January 2023, the Applicant applied by way of affirmation to withdraw his leave application. The reasons stated in his affirmation are:

“I am applying to close of my case because I have already Hong Kong Travel Visa thank you very much for kind consederation”

4.  That is only a statement of his intention to withdraw his leave application, but is equivocal as to the underlying reason for the withdrawal in light of his alleged fears, risks and claims for protection, his appeal against the Notice and the grounds of his application for leave to apply for judicial review of the Decision. To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 1 March 2023 giving him directions to lodge a statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating in particular:

(i)    that his application to withdraw the application for leave to apply for judicial review is made out of his own free will;

(ii)   that he understands that if his application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision remains in force; and

(iii)  if no affirmation shall have been filed as required, his application for leave to apply for judicial review may be determined on paper and may be dismissed for want of prosecution.”

5.  As at the date of this Form CALL-1, the Applicant had not responded.  There is nothing to suggest that he has changed his address or has not received the correspondence.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing. 

Discussion and conclusion

6.  Despite the Court’s directions, the Applicant declined to confirm that his withdrawal application is made under his own free will and that he understands the consequence of the withdrawal. The Court is skeptical of the reason for his non-refoulement claims, his application for leave to apply for judicial review as well as his withdrawal application.  The Court does not consider it appropriate to allow his withdrawal application. 

7.  In the light of the Court’s direction, the Applicant must understand that if he does not respond, 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.  The Court therefore considered it appropriate to dismiss his leave application for want of prosecution.

8.  For the above reasons, the Applicant’s withdrawal application and leave application are 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

Form CALL-1

[1] risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4]  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol