Shrestha Chitra Bahadur v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 1179/2019[2023] HKCFI 737

Court

High Court CFI

Date28 Mar 2023

Judge—

Case Document

100%Judiciary

HCAL 1179/2019

[2023] HKCFI 737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1179 of 2019

BETWEEN
	Shrestha Chitra Bahadur	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

onsideration 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 is an illegal immigrant by staying in Hong Kong without permission of the Director of Immigration. 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 3 May 2019 for application for leave to apply for judicial review of the Board’s Decision.

3.The applicant filed an affirmation on 27 August 2019 stating “… I want to go back my country because … I don’t have any problem in Nepal. So I want to close my case.”

4.The Court informed the applicant that his application would not be entertained as his application would be fixed for hearing. However, if he was absent, his application would be determined in his absence. This was because the Court considered that the applicant might revive his application after his application was approved and it would be better to dispose of his application on the merits. Since then, the matter was held in abeyance until recent time.

5.The Court Clerk had attempted to contact the applicant in order to confirm with him whether he maintains his wish to close his case. But she was unable to find him.

6.In the circumstances, the Court treats him as maintaining his wish to close his case since there is no evidence to show otherwise.

7.In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

8.The application is dismissed.

Dated the 28^th day of March 2023

(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 28/3/2023 Shrestha Chitra Bahadur 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 28/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13694/18/10/36/N555 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3420/18 (Formerly RBCZ 10885/16)(T6I116) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment

Re Manik Md Mahamudun Nabi