SANTA BAHADUR GURUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1538/2019

[2023] HKCFI 1188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1538 of 2019

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 the Applicant in open court;

Leave to apply for Judicial Review be dismissed for want of prosecution.

Observations for the Applicant:

Introduction

1.  There are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 22 March 2019 (the “Decision”); and (2) his application by way of affirmation filed on 12 December 2022 to withdraw that application (the “withdrawal application”).  

2.  The Applicant is a Nepalese national.  He was arrested as an illegal immigrant on 7 April 2007. He claimed to have sneaked into Hong Kong from the Mainland on 11 December 2006. He lodged a torture claim under the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by written signification dated 12 March 2008 (the “CAT Claim”).   His CAT Claim was refused by the Director of Immigration in the Notice of Decision dated 14 June 2013.  He appealed but his appeal was refused on 13 December 2013.  He did not pursue his torture claim further.  The decision refusing his CAT Claim became final.

3.  Before his CAT Claim was dismissed, he had also raised another claim for protection under the Unified Screening Mechanism (the “USM”) on 20 June 2013.  His claim was based on his fear that if returned to Nepal, he would be endangered by the Maoists because he had refused to be recruited by them.  That claim was assessed on all four applicable grounds available under the USM, other than the Torture Risk ground which would be considered under the CAT Claim; namely, BOR 3 Risk[1]; BOR 2 Risk[2] and Persecution Risk[3] grounds.  By his notice of decision dated 26 April 2018 (the “Notice”), the Director of Immigration dismissed his claims.  The Applicant appealed to the Board.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of the Decision.

4.  Then, on 12 December 2022, the Applicant applied by way of affirmation to withdraw his leave application because he was going back to his home country and he wanted to close all his case.

5.  That is only a statement of his intention to withdraw his leave application, but is equivocal as to the underlying reason for the withdrawal in light of his alleged fears, risks and claims for protection, his appeal against the Notice and the grounds of his application for leave to apply for judicial review of the Decision. To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 28 March 2023 giving him directions to file an affirmation or statement within 14 days of the date of the letter setting out his grounds for withdrawing his leave application, stating:

(i)    whether his problem in his home country had been solved, and if so, how;

(ii)   that he understands that if his application to withdraw is approved, the decision of the Board dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision the Director stands; and

(iii)  that he made the application to withdraw out of his own free will.

6.  As at the date of this Form CALL-1, the Applicant had not responded.  There is nothing to suggest that he has changed his address or has not received the correspondence.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

Discussion and conclusion

7.  Despite the Court’s directions, the Applicant declined to confirm that his withdrawal application is made under his own free will and that he understands the consequence of the withdrawal. The Court is skeptical of the reason for his non-refoulement claims, his application for leave to apply for judicial review as well as his withdrawal application.  The Court does not consider it appropriate to allow his withdrawal application.  In the light of the Court’s direction, the Applicant must understand that if he does not respond, his withdrawal application may not be approved.  Accordingly, the Court refused his withdrawal application.  As he said in his affirmation that he wanted to close his case and to return to his home country, his affirmation evinced a lack of intention to prosecute his leave application.  In the circumstances, the Court considered it appropriate to dismiss his leave application for want of prosecution.

8.  For the above reasons, the Applicant’s withdrawal application and leave application are refused.

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

[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[2] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol