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HCAL 1909/2019
[2024] HKCFI 2741
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1909 of 2019
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Ali Wajid |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant was an illegal immigrant. He had made non-refoulement claim to the Director of Immigration (“the Director”). The Director refused his claim. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) The Board dismissed his appeal.
2. The applicant’s claim is based on his fear that, if refouled, he will be harmed or killed by his uncle because of a land dispute. The Director found that his claim was unsubstantiated. On appeal, the Board found that his evidence was not credible and internal relocation was viable. The applicant has raised no valid reason to challenge the Board’s Decision.
3. The applicant filed Form 86 on 8 July 2019 to apply for leave to apply for judicial review of the Board’s Decision.
4. The Court received information from the Immigration Department that the applicant was removed and repatriated, which means the applicant has already left Hong Kong.
5. Section 37ZF of the Ordinance provides, inter alia,
“Deemed withdrawal of torture claim on claimant’s departure
(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”
6. Final determination includes the judicial review proceedings[1]. Therefore the applicant is deemed to withdraw his claim.
7. There is nothing outstanding in this action. For case management, this application should be dismissed.
8. I dismiss the applicant’s application.
Dated the 22nd day of October 2024
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/10/2024
Ali Wajid
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9638/17/12/305/P1871
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 459/12 (formerly RBCZ 12/10)(T7S56)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Court of Appeal in Re: Aioub Ali [2019] HKCA 1329. Hon Lam VP (as he then was), Wong and S T Poon, 2 December 2019, held:
“16. Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final. Final means final in terms of administrative process. However, such statutory provision does not exclude judicial review. In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above.”
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