Dinh Xuan Duong v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

Case No.HCAL 415/2019[2019] HKCFI 3079

Court

High Court CFI

Date20 Dec 2019

Judge—

Case Document

100%Judiciary

HCAL 415/2019

[2019] HKCFI 3079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 415 of 2019

BETWEEN

	Dinh Xuan Duong	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.For the reasons below, it is not necessary to set out the full details of the facts of this case.

The applicant

3.The applicant is a Vietnamese national. He came to Hong Kong illegally on 21 October 2014. On 30 October 2014, he surrendered to the Immigration Department. He raised his non-refoulement claim to the Immigration Department on the same day.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 24 January 2017, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and attended a hearing on 7 December 2018.

7.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

Application for withdrawal

8.By letter dated 8 October 2019 signed by the applicant, he applied to withdraw his application for leave to apply for judicial review of the Board’s Decision, confirming that the Court may dismiss his application without a hearing.

CONCLUSION

9.Since the applicant has no intention of proceeding with his application, I find no reason to refuse his application for withdrawal. Accordingly, I dismiss his application.

Dated the 20^th day of December 2019

	(Mike Mak)
	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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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)).		Sent to the Applicant on 20/12/2019 Dinh Xuan Duong Applicant’s ref. no: Nil.		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 20/12/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 6109/17/2/108/V937 Director of Immigration (2^nd Putative Respondent) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1