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

HCAL 2291/2018

[2021] HKCFI 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2291 of 2018

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.  The Order of Deputy High Court Judge To dated 8 April 2021 was set aside; and

2.  Leave to apply for Judicial Review was withdrawn.

Observations for the Applicant:

Introduction

1.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 8 November 2008 and was arrested by the police on 13 November 2008.  On 16 November 2008, he made a ‘torture claim’ to the Director of Immigration (the “Director”).  His application was refused by the Director.  He appealed.  In due course, his appeal was heard by the Non-refoulement Claims Petition Office (the “Board”).  On 30 April 2018, the Board dismissed his appeal (the “Decision”).  On 22 October 2018, he filed an application for leave to apply for judicial review against the Decision of the Board.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  By 14 May 2018, the time to appeal has expired.  The application for leave to appeal is two months and three weeks out of time.

3.  In his affirmation filed in support of his application, the Applicant said he disagreed with the Decision and that his life will be in danger if returned to Pakistan because of a land dispute.  He gave no reason for the delay in making the leave application. 

4.  At the hearing on 8 April 2021, the court explained to him the requirement under Order 53 rule 3(4) and that his application was late by more than two months.  Despite repeated attempts to solicit an explanation from him for the delay, he remained adamant that he filed his application within 8 days of receipt of the Decision and that his application was in time.  He confirmed that the address he gave to the Board was correct.  The court dismissed his application for it was not satisfied that he had a credible and valid reason for the delay and valid grounds to challenge the Decision.

5.  On the following day, in the course of preparing its written reasons for decision the court discovered from the copy of letter issued by the Board that all along the Applicant had given an incomplete address to the Board and to the court in that the number of the building is missing.  Giving him the benefit of the doubt, the Court reviewed and set aside its decision on 8 April 2021 and reconsidered his application.  A further hearing was scheduled on 29 April 2021.

6.  At the rescheduled hearing, the Court explained to the Applicant that it had set aside its decision, grant him extension of time and shall reconsider his application for leave.  The Court invited him to make submission relating to his grounds for application.  However, the Applicant said that he had been recently informed that the conditions at home is safe for him to return and he withdrew his application for leave to apply for judicial review.  The Court was satisfied that his withdrawal was voluntarily made and granted him leave to withdraw his application.

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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