Md Awlad Hossain v. Director of Immigration

HCAL 2209/2019

[2024] HKCFI 3436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2209 of 2019

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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   Leave to apply for judicial review of the Director’s decision in his letter dated 25 July 2019 be granted.

2.   The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

3.   A copy of this Order be served on the Director of Justice, who shall work out the proper directions for the judicial review hearing with the applicant.

4.   Liberty to apply.

Observations for the Applicant:

1.This is the applicant’s application to review the Director’s letter dated 25 July 2019, in which the Director, having acknowledged the applicant’s letter of 5 July 2019 for withdrawing his subsequent claim application, said in the last sentence:

“This is to confirm our receipt of your said written notice of withdrawal of your non-refoulement claim. No further action will be taken by us on your non-refoulement claim.”

2.The applicant wished to re-open his application because he was informed that his problem remained after he had applied for withdrawal of his subsequent claim.  He took it that the Director had refused his application.

3.Section 37ZP of the Ordinance provides, inter alia:

“(1) (b). all of the other provisions of this Part apply to a subsequent claim as they apply to any other torture claim.”

4.Section 37ZE of the Ordinance provides that the applicant may, subject to the conditions therein provided, apply to re-open his subsequent claim application.  In other words, if the applicant applies to re-open his subsequent claim, the Director has to consider his application.  It is in this respect the last sentence of the Director’s letter dated 25 July 2019 is an error in law.

5.I shall give leave to apply for judicial review of the Director’s decision in his letter dated 25 July 2019.

6.The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

7.A copy of this Order be served on the Director of Justice, who shall work out the proper directions for the judicial review hearing with the applicant.

8.Liberty to apply.

Dated the 17^th day of December 2024

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