Kaewmoon Papitchaya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 891/2022[2023] HKCFI 2187

Court

High Court CFI

Date29 Aug 2023

Judge—

Case Document

100%Judiciary

HCAL 891/2022

[2023] HKCFI 2187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 891 of 2022

BETWEEN
	Kaewmoon Papitchaya	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.

THE APPLICATION

1.The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.The applicant filed Form 86 on 7 September 2022 to apply for leave to apply for judicial review of the Board’s Decision.

3.By affirmation filed on 3 April 2023, the applicant said that she wants to cancel her leave application.

4.The court has sent her a letter, asking her to confirm that this decision was of her free will and that she understands the consequences of this application. The letter further said that if she fails to reply, her application for withdrawal will be refused and her application will be dismissed.

5.The applicant has not replied to the court’s letter.

6.Upon reflection, the Court now considers that her application can be dealt with by dismissal of the leave application by reference to the authority below.

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 therefore dismissed.

Dated the 29^th day of August 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 29/8/2023 Kaewmoon Papitchaya 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 29/8/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17911/21/5/24/TH77 Director of Immigration Putative Interested Party’s ref. no.: RBCL/31465/20 (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

Re Manik Md Mahamudun Nabi