Nguyen Thi Nhung v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 1196/2019[2023] HKCFI 738

Court

High Court CFI

Date28 Mar 2023

Judge—

Case Document

100%Judiciary

HCAL 1196/2019

[2023] HKCFI 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1196 of 2019

BETWEEN
	Nguyen Thi Nhung	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 remains in Hong Kong without permission of the Director of Immigration. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. She appealed to the Torture Claims Appeal Board (the “Board”). The Board dismissed her appeal.

2.The applicant filed Form 86 on 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

3.The applicant filed an affirmation on 28 June 2019 to the court, in which she stated that she wanted to withdraw her application for judicial review as she wanted to return to her own country.

4.By letter dated 2 July 2019, the court informed the applicant that as her application was due to be heard, her application would not be entertained. This is for the prevention that she might revive her application after leave was given to her to withdraw her application.

5.The matter was held in abeyance since then, until recently. The clerk of the Court had attempted to contact the applicant in order to ascertain her intention of withdrawing her application. However, she could not be contacted by phone as she failed to register her name for her sim card. In the circumstances, the Court deals with her application for withdrawal on the assumption that she maintains her original intention.

6.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.”

7.The application is therefore 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 Nguyen Thi Nhung 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 6036/17/2/35/V915 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3424/16 (Formerly RBCZ 12179/15) 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