Khumalo John v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Case No.HCAL 902/2021[2021] HKCFI 3800

Court

High Court CFI

Date21 Dec 2021

Judge—

Case Document

100%Judiciary

HCAL 902/2021

[2021] HKCFI 3800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 902 of 2021

BETWEEN
	Khumalo John	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 refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is an illegal immigrant. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2.The applicant filed Form 86 on 22 June 2021 for application for leave to apply for judicial review of the Board’s Decision.

3.By affidavit filed on 19 November 2021, the applicant applied to the Court to cancel his application. He said ‘I have decided to cancel/close my case at the High Court because my case has been internally resolved. So for this reason I want to go back home because I am safe now ….’

4.The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

“It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at

§§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1)….” [67]

5.As the applicant has solved his problem at home, the Court should refuse to grant him the remedy and the applicant’s application should be dismissed.

6.The application is therefore dismissed.

Dated the 21^st day of December 2021

	(Allen LEE)
	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 21/12/2021 Khumalo John 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 21/12/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: Nil. Director of Immigration Putative Interested Party’s ref. no.: RBCL 2178/18(CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment

Aw v. Director of Immigration and Another