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HCAL 3443/2019
[2020] HKCFI 2521
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3443 of 2019
BETWEEN
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Azhar Saeed alias Saeed Azhar |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 37-year-old national of Pakistan who entered Hong Kong illegally in July 2006 and was arrested by the immigration officers on 4 October 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local followers of Deobandi, an Islamic revivalist movement within Sunni Islam over some religious dispute.
2. By a Notice of Decision dated 11 February 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those Deobandi followers upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in the absence of 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 Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 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 Pakistan away from his home district in large cities where it would be difficult if not impossible for those Deobandi followers to locate him.
4. On 17 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and on 28 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.
5. By a letter dated 5 May 2017 the Director invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and upon receiving and considering the same information from him as before, the Director by a Notice of Further Decision dated 23 June 2017 again rejected the Applicant’s claim including BOR 2 risk.
6. On 4 July 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision. On 13 November 2019 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.
7. On 20 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge.
8. However, before his leave application could be dealt with by the court, the Applicant on 18 September 2020 filed an affirmation requesting to withdraw his leave application because he “has no problem in his home country” and that he wants to go home as soon as possible.
9. In the premises, and as the basis of his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly, I accede to the Applicant’s request and dismiss his leave application.
Dated the 14th day of October 2020.
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(TAM Kam-man)
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 on 14th October 2020
Azhar Saeed alias Saeed Azhar
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 14th October 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
BOR 820/17/7/10/P221
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 297/09 (Formerly RBCZ 1879/08)(T7S42)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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