SIDHU LOVEPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 420/2020

[2023] HKCFI 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 420 of 2020

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:

Introduction

1.  There are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 23 January 2020 (the “leave application”); and (2) his application by way of affirmation filed on 31 October 2022 to withdraw that application (the “withdrawal application”).

2.  The Applicant is an Indian national. He lodged a non-refoulement claim with the Director of Immigration (the “Director”) on 12 April 2018. His claim is founded on his fear of being harmed or killed by Sandeep Singh, his family or his friends or subordinates because of a land dispute, if returned to India. His claim was dismissed by the Director via his Notice of Decision dated 30 May 2018. His appeal against the Director’s decision was dismissed by the Board’s Decision. He then sought leave to apply for judicial review of the Decision.

3.  Then, on 31 October 2022, the Applicant applied by way of affirmation to withdraw his leave application. He did not give any reason for the withdrawal. He simply requested the Court to close his application as soon as possible and thanked the Court.

4.  Having regard to his alleged fears, risks and claims for protection and his appeal against the Director’s Notice, the Court is skeptical about the underlying motive for withdrawing his leave application. 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 28 March 2023 giving him directions to file an affirmation or statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating:

(i)  whether his problem in his home country had been solved, and if so, how;

(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 stands; and

(iii)  that he made the application to withdraw out of his own free will.

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 may be justly 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. In the light of the Court’s direction, the Applicant must understand that if he does not respond, his withdrawal application may not be approved. Accordingly, the Court refused his withdrawal application. As the Applicant said in his affirmation that he wanted the Court to close his application for judicial review, his affirmation evinced a lack of intention to prosecute his leave application. In the circumstances, the Court considered it appropriate to dismiss his leave application for want of prosecution.

7.  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