SHAMSHAD ASIF v. TORTURE CLAIMS APPEAL BOARD

HCAL 870/2020

[2021] HKCFI 387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 870 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 February 2007 and was arrested by police on 22 April 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Peoples Party (“PPP”) because he supported their rival Pakistan Muslim League (N)(“PML(N)”).      

2.  By a Notice of Decision dated 18 July 2013 the Director of Immigration (“the Director”) rejected the Applicant’s torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) upon finding the threats that he claimed to have experienced and that he would face upon his return to Pakistan did not amount to torture within section 37U(1) of the Ordinance.

3.  On 26 July 2013 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but his appeal was dismissed by the Board on 27 November 2013 which also confirmed the decision of the Director.

4.  Upon the commencement of the Unified Screening Mechanism (“USM”) by the Immigration Department in March 2014 for the screening of non-refoulement claims under other applicable grounds in addition to torture risk and including risk of a claimant’s 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”), the Director proceeded to determine the Applicant’s non-refoulement claim under these grounds other than his torture risk, but before a determination was made, the Applicant on 29 October 2018 wrote to withdraw his non-refoulement claim, and by a letter dated 30 October 2018, the Director accepted his request and treated his claim as withdrawn.

5.  On 12 February 2020 the Director received a written request from the Applicant to re-open his non-refoulement claim, but before any decision had been made by the Director on his request, the Applicant on 11 May 2020 filed a Form 86 for leave to apply for judicial review of a decision of the Board which he dated 20 October 2019 but of which there is none made by the Board other than the one dated 27 November 2013 as noted above and as confirmed by the Board by its subsequent letter dated 18 December 2020, and with no ground for seeking relief given in the Form, while in his supporting affirmation of the same date the Applicant merely repeated his claim that he cannot go back to his home country as his life is still in danger over there without putting forward any proper ground for his intended challenge even if it were indeed against that only decision of the Board made more than 7 years ago.

6.  Meanwhile on 4 June 2020 the Director agreed to re-open the Applicant’s non-refoulement claim under USM and informed him in writing accordingly.

7.  However, on the same day of 4 June 2020 the Applicant in writing to the Director again requested to withdraw his non-refoulement claim, and on the following day on 5 June 2020 the Director informed the Applicant in writing that no further action would be taken on his non-refoulement claim and that his case had been treated as closed.  

8.  The Applicant then on 4 November 2020 filed an affirmation in these proceedings to request to withdraw his leave application for judicial review, as his “problem is now finished”, and that he wants to return to his home country.

9.  In the premises, and as the basis of his non-refoulement claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn, and accordingly I dismiss his leave application.

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