SAYEAD ABU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2426/2020

[2022] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2426 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;

1.         Leave to apply for Judicial Review refused; and

2.         There be no order made in respect of the withdrawal application on 25 April 2022

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

1.  This is the Applicant’s application by Form 86 filed on 11 December 2020 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 October 2018 issued by Estella Chow on behalf of the Director (the “Notice”).  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) is also named as a proposed respondent, but no relief in respect of any judgment, order or other proceedings is sought against the Board.  In his supporting affirmation filed on the same date, he repeated in unequivocal terms his intention to seek judicial review of the decision by the Immigration Department.  However, he also annexed a copy of the decision of the Board dated 26 November 2020 dismissing his appeal against the decision of the Director in the Notice.  While there may be a slight doubt as to the subject matter of the Applicant’s intended judicial review, his unequivocal intention as expressed in his Form 86 and supporting affirmation was to apply for judicial review of that Notice.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board pursuant to section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those proceedings.  The Director’s decision in the Notice has been superseded by the Decision of the Board and is not susceptible to judicial review: Re Moshsin Ali[1].   

3.  On 29 April 2022, the Court received a letter dated 25 April 2022 from the Applicant requesting “to withdraw [his] case”.  The Court did not consider such an application may be properly made by letter.  As the Applicant wished to bring his application which has no prospect of success to a conclusion, the most expedient way to dispose of his application is to dismiss it for want of merits. 

4.  For the above reasons, the Applicant’s application is dismissed.  No order is made in respect of his letter dated 25 April 2022.

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] [2018] HKCA 549