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HCAL 3899/2019
[2021] HKCFI 238
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3899 of 2019
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Pakkir Mohamed Shaikabdulla alias Pakkir Mohamed alias Pakkiir Mohamed Shaikabdulla
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Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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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 Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 32-year-old national of India who arrived in Hong Kong on 24 August 2016 with permission to remain as a visitor up to 7 September 2016 when he did not depart and instead overstayed, and on 9 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who were against their relationship.
2. By a Notice of Decision dated 27 July 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).
3. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.
4. On 8 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 31 October 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 20 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.
5. On 31 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he still has problems in his country and that he cannot go home but without putting forward any proper ground for his intended challenge.
6. However, before his application could be dealt with by the court, the Applicant on 7 October 2020 filed an affirmation requesting to “cancel” his application as there is “no more problem” in his country and that he wants to go home.
7. In the premises, and as the basis for his claim no longer exists and that the Applicant intends to return to his home country, it would be in the circumstances more appropriate that his application be dismissed. Accordingly I dismiss his leave application.
Dated the 27th day of January 2021.
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(TAM Kam-man) |
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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 his 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 o n 27 th January 2021
Pakkir Mohamed Shaikabdulla alias Pakkir Mohamed alias Pakkiir Mohamed Shaikabdulla
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 27 th January 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 12889/18/8/159/IN2563
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2340/18 (Formerly RBCZ 10050/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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