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SANAULLAH KHAN v. THE DIRECTOR OF IMMIGRATION

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[2018] HKCFI 2160-EN-2018-09-18

SANAULLAH KHAN v. THE DIRECTOR OF IMMIGRATION

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HCAL 100/2002

[2018] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 100 OF 2002

________________________

BETWEEN
	SANAULLAH KHAN	Applicant
	and
	THE DIRECTOR OF IMMIGRATION	Respondent

________________________

Before:

Hon Chow J in Chambers

Date of Hearing:	18 September 2018
Date of Judgment:	18 September 2018

___________________

J U D G M E N T

___________________

1. The present application for judicial review was commenced on 15 March 2002. By the application, the Applicant, a torture claimant, sought to challenge the decisions of the Director of Immigration (“the Director”) to (i) make a removal order against him on 14 February 2002, and (ii) execute the removal order, on the ground that the Director failed to himself assess whether the Applicant would be subjected to torture if he was returned to his home country, relying on the findings of the UNHCR instead.

2. On 15 March 2002, Hartmann J (as he then was) granted the Applicant leave to apply for judicial review, and an interim injunction to restrain the Director from removing the Applicant from Hong Kong pending the determination of the application for judicial review. The substantive application for judicial review was originally fixed to be heard on 11 November 2002, but was adjourned sine die with liberty to restore by Deputy High Court Judge A Cheung (as he then was) on 7 November 2002 pending the judgment of the Court of Appeal in Prabakar v Secretary for Security in CACV 211/2002 and in view of the fact that the Director had indicated that he would reconsider the Applicant’s claim under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984.

3. As is well known, the ground of challenge raised in this application for judicial review was authoritatively determined by the Court of Final Appeal in Prabakar v Secretary for Security (2004) 7 HKCFAR 187.

4. The Applicant’s torture claim was eventually assessed, and refused, by the Director on 22 November 2011. His petition to the Chief Executive against the Director’s refusal of his torture claim was rejected by an adjudicator on 21 December 2011. The Applicant’s claim for non-refoulement protection on grounds other than torture was refused by the Director on 20 June 2017 under the Unified Screening Mechanism. The Applicant did not petition to the Non-refoulement Claims Petition Office against that decision of the Director.

5. On 22 November 2017, the Director, acting though the Department of Justice, wrote to the Applicant proposing that the present application for judicial review be dismissed by consent on the ground that it had become academic in view of the aforesaid intervening circumstances. The Applicant did not reply to the Director’s proposal.

6. On 12 April 2018, the Director issued a summons seeking the following orders:-

(1)   the substantive hearing of the application for judicial review be restored;
(2)   the interim injunction granted by Hartmann J be discharged; and
(3)   the application for judicial review be dismissed.

DISCUSSION

7. The substantive hearing of the application for judicial review was adjourned sine die with liberty to restore by the court on 7 November 2002 pending (i) the Court of Appeal’s judgment in Prabakar, and (ii) the Director’s reconsideration of the Applicant’s torture claim. Prabakar has now been determined by the Court of Appeal and the Court of Final Appeal, and the Director has re-considered the Applicant’s torture claim and assessed his non-refoulement claim based on other grounds. There is no reason for not restoring the substantive hearing of the application for judicial review.

8. In so far as the interim injunction granted by Hartmann J is concerned, it has also been overtaken by the events mentioned above. The Applicant has not challenged the adjudicator’s rejection of his petition to the Chief Executive against the Director’s refusal of his torture claim, or petitioned against the Director’s decision to refuse his non-refoulement claim based on other grounds. The removal order against the Applicant is still valid, and there is no further impediment to his removal from Hong Kong. In my view, the interim injunction ought to be discharged.

9. Lastly, in relation to the application for dismissal of the application for judicial review, I consider that the issue raised in this application has become academic and it should accordingly be dismissed.

DISPOSITION

10. For the foregoing reasons, I make an order in terms of paragraphs 1 and 2 of the Director’s summons dated 12 April 2018.

11. I make no order as to the costs of the Director’s summons.

12. I shall now adjourn the proceedings into open court for its formal disposition.

[The proceedings were adjourned into open court]

13. The application for judicial review is dismissed with no order as to costs, save that the Applicant’s own costs, including all costs reserved, shall be taxed in accordance with legal aid regulations.

	(Anderson Chow)
	Judge of the Court of First Instance
	High Court

The Applicant was absent

Mr Sunny Li, SGC (Ag.), instructed by Department of Justice, for the Respondent

HCAL000100/2002

HCAL 100/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 100 OF 2002

____________

BETWEEN
	SANAULLAH KHAN	Applicant

	AND

	THE DIRECTOR OF IMMIGRATION	Respondent

____________

Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 7 November 2002

Date of Judgment: 7 November 2002

_______________

J U D G M E N T

_______________

1. The substantive hearing of this judicial review proceedings is scheduled to take place on the coming Monday. Today, Mr Pun appearing for the Applicant asks me to adjourn the substantive hearing sine die with liberty to restore, with costs reserved.

2. There are two matters which Mr Pun relies on in support of his application. First, Mr Pun informs me that he and Mr Marshall, SC who appears for the Respondent before me today have just done, also as opponents against each other, a Court of Appeal hearing, which concerned, amongst other things, the same point that is being raised in the present proceedings. Judgment was reserved by the Court of Appeal but according to counsel, judgment will come out very shortly.

3. According to Mr Pun, the Court of Appeal would most likely deal with this point in its judgment and a decision, one way or another, would have a profound effect on the application for judicial review in the present proceedings. So this is a good reason for the adjournment of the substantive hearing, pending the outcome of the Court of Appeal's case.

4. Secondly, Mr Pun draws my attention to a change of circumstances after leave to apply for judicial review was first granted by Hartmann J. It is this: the Department of Justice has on behalf of the Director of Immigration and the Secretary for Security indicated that they would consider or, as Mr Pun puts it, reconsider the Applicant's claim under the Convention Against Torture on an unconditional basis, i.e. regardless of whether the Applicant chooses to cooperate with the Government and whether or not he chooses to proceed with his application for judicial review.

5. In those circumstances, there is good sense to defer the adjudication of the dispute in the present proceedings pending the outcome of the Government's consideration or reconsideration. If the result should turn out to be in favour of the Applicant, there would not be any need for the present proceedings. If the result should turn out to be unfavourable, then of course the Applicant could consider where he stands and decide what action to take next.

6. If I have not misunderstood the position of the Respondent, the Respondent is not happy with simply an adjournment of the present proceedings; the Respondent wants the Applicant to withdraw the present proceedings in the light of the above matters, particularly the Government's unconditional offer to consider or reconsider the Applicant's claim.

7. In their letter dated 29 October 2002, the Government offers that the Director of Immigration will consent to the withdrawal of the Applicant's application for judicial review with no order as to costs. The Director would also agree that the Applicant will not be removed whilst his claim is considered under the Convention and his release on recognisance shall be continued while his claim is being considered. However, there is no mention or offer of the withdrawal of the removal order that has already been made by the Director against the Applicant which is one of the decisions under challenge in the present proceedings.

8. Having heard counsel, I am of the view that I cannot force the Applicant to withdraw his application. There has been some discussion during the hearing relating to whether the Court can in an appropriate case make an order dismissing a pending application for judicial review based on a change of circumstances since the grant of leave to apply for judicial review. The discussion was inconclusive. In my judgment, on the facts of the present case, even if I were of the view that the Court does have such jurisdiction in an appropriate case, I am not satisfied that this is such a case.

9. If nothing else, I am with Mr Pun when he says that he or his client requires the present proceedings in order to preserve the Applicant's position relating to the removal order, in case the Director's decision on the consideration or reconsideration of his client's position under the Convention is unfavourable.

10. In those circumstances, given the latest position, the next best thing that one can consider is the adjournment of the substantive hearing. Nothing that has been said on behalf of the Respondent by Mr Marshall conflicts with the grant of an adjournment. As I say, what is really in dispute is that the Government actually wants more than an adjournment, i.e. the withdrawal of the present proceedings. But the greater includes the less, so there is really nothing here to go against the grant of an adjournment in the light of those two matters that I have mentioned above.

11. So having taken everything into account, in my judgment, it is sensible to have an adjournment pending the Court of Appeal's judgment and/or the result of the consideration or reconsideration by the Government under the Convention. It may be that when the Court of Appeal eventually comes out with its judgment, then depending on the result, one could tell better whether these proceedings can be safely withdrawn or not. But at this moment, I do not see any sensible alternative to an adjournment of the present proceedings. Certainly, I do not think it sensible to expend public money in having a substantive hearing on Monday when the same point has already been argued by the Court of Appeal and that judgment by the Court of Appeal will come out very soon.

12. So as I say I make an order adjourning the substantive hearing sine die with liberty to the parties to restore the hearing for further directions. In fact, I would expect the parties to apply for directions from the court after the result of the Court of Appeal case is known.

13. Having heard counsel on costs, I would reserve the question of costs.

	(A Cheung)
	Deputy Judge of the Court of First Instance
	High Court

Representation:

Mr Hectar Pun, instructed by Messrs Barnes & Daly, for the Applicant

Mr Marshall, SC, instructed by Secretary for Justice, for the Respondent