Caramat Virginia Lobeban v. Director of Immigration

HCAL 497/2023

[2023] HKCFI 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 497 of 2023

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 is an illegal immigrant by overstaying. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration (“the Director”). She appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, her appeal was dismissed by the Board. She had taken her case to the High Court and the Court of Final Appeal. All her applications were dismissed. She then made a subsequent claim with the Director. By Notice of Decision dated 16 November 2021 (“the Director’s Decision”), the Director rejected her application for subsequent claim.

2.The applicant filed Form 86 on 29 March 2023 for application for leave to apply for judicial review of the Director’s Decision.

3.However, the next day, the applicant lodged a letter to the Court, saying she wants to withdraw her application because she had appeared before a master of the High Court, who had given her advice as recorded in writing. She understands all the consequences and this is why she applies to withdraw her application.

4.In order to ascertain whether the applicant’s decision to withdraw her application is out of her free will without any undue influence, the Court has referred to the record of the hearing before the master. Below is the master’s record in writing:

“COURT: Applicant’s attention has been drawn to (i) recent judgment of the court and (ii) the possible costs consequences.

If the Applicant decides to file the intended application / need time to consider the intended application

No order made

(papers be returned to the Applicant by clerk, Applicant proceed to LG1 if necessary.”

5.This Court is satisfied that the applicant is aware of her consequences if she proceeds with her application and on second thought, she wants to withdraw her application.

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 18^th day of May 2023

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

Form CALL-1