Hanyire Ashby Kudakwashe v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 3115/2019[2021] HKCFI 3108

Court

High Court CFI

Date21 Oct 2021

Judge—

Case Document

100%Judiciary

HCAL 3115/2019

[2021] HKCFI 3108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3115 of 2019

BETWEEN

	Hanyire Ashby Kudakwashe	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant filed Form 86 on 21 October 2019 for application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board.

2.The applicant has sent two letters to the court, both asking for closing his application and dismissal of the same. In his letters both received on 29 September 2021, he complained that the condition of the prison, in which he was detained was much better than that in the detention centre of the Immigration Department, where he had been detained for the past 4 months. I shall set out the full text of his letter dated 24 September 2021 for reference:

“I request that my Judicial Review case be dismissed and closed as it serves no purpose given that I have been detained with no regard to my on going case. I ask that be done in a timely manner so as to free me from the horrible and inhumane detention conditions I have suffered through for the past 4 months. PLEASE CLOSE MY CASE. I await impatiently and unhappily in what has to be the worst detention center on earth.

Thank you for your attention.”

3.At first blush, this letter puzzles me as to whether he makes the application voluntarily, knowing the effect and consequence of his application. However, there is no evidence to consider that he is making his application under threat, force or duress. He is simply not happy with the condition of the detention center of the Immigration Department, which houses all other applicants, who might have committed criminal offences and released from prison or waiting for deportation. I am therefore driven to assume that he makes his application of his own free volition, knowing that he will be repatriated back to his own country since his is an illegal immigrant.

4.Now, the applicant wants, by this application, to be discharged from the detention centre of the Immigration Department as soon as practicable as he asked his application be processed in a timely manner. I shall accede to his request.

5.The application is therefore dismissed.

Dated the 21^st day of October 2021

	(M.O. WONG)(Ms)
	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 21 October 2021 Hanyire Ashby Kudakwashe 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 21 October 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: - Director of Immigration Putative Interested Party’s ref. no.: RBCL/3659/16 (CZ); RBGI/3818/16 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1