KOUSAR RUBINA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

KOUSAR RUBINA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Section 37ZF must be construed to require voluntary departure for a torture/non-refoulement claim to be treated as withdrawn; forced repatriation by the Immigration Department prior to judicial determination does not constitute "leaves Hong Kong" under s37ZF, but because the 5th applicant here voluntarily returned, s37ZF applies and his application is properly dismissed and the Official Solicitor discharged.

Citation
[2024] HKCFI 2663
Parties
1st Applicant: Kousar Rubina; 2nd Applicant: Arslan Muhammad; 3rd Applicant: Faizan Muhammad; 4th Applicant: Irfan Komal; 5th Applicant: Nouman Muhammad; Putative Respondent: Torture Claims Appeal Board / Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 October 2024
Case Number
HCAL1641/2021
Procedural Posture
Constitutional and Administrative Judicial Review (non Refoulement/torture Claim) / Application to Dismiss Following Claimant's Withdrawal and Official Solicitor Discharge
Outcome
5th applicant's application dismissed; Official Solicitor discharged from acting as next friend; no order as to costs.
Legal Topics
Non Refoulement, Torture Claim, Removal/deportation, Withdrawal of Claim, Statutory Construction
Source Language
EN
Immigration Law Constitutional Law Administrative Law Human Rights Law Non Refoulement Torture Claim Removal/deportation Withdrawal of Claim +1 more

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Parties

Kousar Rubina

1st Applicant

Arslan Muhammad

2nd Applicant

Faizan Muhammad

3rd Applicant

Irfan Komal

4th Applicant

Nouman Muhammad

5th Applicant

Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Constitutional and Administrative Judicial Review (non Refoulement/torture Claim) / Application to Dismiss Following Claimant's Withdrawal and Official Solicitor Discharge

Legal Issues

  1. 1 Whether section 37ZF of the Immigration Ordinance treats a claim as withdrawn where the claimant was forcibly removed by the Immigration Department
  2. 2 Whether the word "leaves" in s37ZF implies voluntary departure
  3. 3 Whether a claimant's voluntary return amounts to deemed withdrawal under s37ZF

Ratio Decidendi

Section 37ZF must be construed to require voluntary departure for a torture/non-refoulement claim to be treated as withdrawn; forced repatriation by the Immigration Department prior to judicial determination does not constitute "leaves Hong Kong" under s37ZF, but because the 5th applicant here voluntarily returned, s37ZF applies and his application is properly dismissed and the Official Solicitor discharged.

Court Disposition

5th applicant's application dismissed; Official Solicitor discharged from acting as next friend; no order as to costs.

Orders

  • The 5th applicant's application be dismissed
  • The Official Solicitor be discharged from acting as the next friend of the 5th applicant in these proceedings