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HCAL 471/2017
[2019] HKCFI 666
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 471 of 2017
BETWEEN
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Rafaqat Muhammad |
Applicant |
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Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office |
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:
Leave to apply for judicial review dismissed.
Observations for the Applicant:
1. The applicant is a national of Pakistan who had entered Hong Kong illegally and was arrested by police on 8 August 2014. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed over a land dispute.
2. While his claim was still being processed and considered by the Director of Immigration (“the Director”), on 6 January 2016 the applicant wrote to the Director and requested to ‘stop’ his claim.
3. By a letter dated 19 January 2016 the Director informed the applicant that his claim was treated as closed and no further action would be taken as to his claim.
4. On 29 April 2016 the applicant in writing to the Director requested to re-open his non-refoulement claim, asserting that his claim had only been temporarily closed in anticipation of threats in Pakistan.
5. By a letter dated 5 May 2016 the Director informed the applicant that his claim may only be re-opened if he was able to provide sufficient evidence to justify it.
6. On 12 May 2016 the applicant submitted further written representation to the Director regarding certain negotiation process taken place earlier in Pakistan but turned out to be unsuccessful and that he was warned not to return to Pakistan, and hence his request to re-open his non-refoulement claim.
7. Following further exchanges between the applicant and the Director, by a Notice of Decision dated 21 June 2016 the Director found that the applicant had failed to provide sufficient evidence to justify re-opening his claim and therefore refused his request.
8. The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and attended an oral hearing on 4 July 2017 before the adjudicator for the Board.
9. By her decision dated 21 July 2017 the adjudicator for the Board found that the applicant did not make a valid withdrawal of his claim, and therefore reversed the Director’s decision and allowed him to re-open his non-refoulement claim.
10. Somehow, and probably due to a misreading or misunderstanding of the Board’s decision, the applicant on 31 July 2017 filed a Form 86 for leave to apply for judicial review of that decision, and judging from his supporting affirmation of the same date in which he clearly stated that he seeks to challenge by way of judicial review the refusal of the Director to allow him to re-open his non-refoulement claim, it is plain to me that his application now before me is wholly unnecessary given his successful appeal to the Board and its decision to allow re-opening of his claim, as evidenced by a subsequent letter from the Director dated 8 November 2017 that the Department has commenced screening process of the applicant’s claim and was then waiting for him to complete his Non-refoulement Claim Form. In the premises I do not find it necessary to deal with his leave application which is accordingly dismissed.
Dated the 15th day of March 2019.
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(Gloria NG)
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
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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 15 March 2019
Rafaqat Muhammad
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 15 March 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4036/16/7/6/P1029
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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