NGO XUAN TUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 219/2020

[2023] HKCFI 2781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 219 OF 2020

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BETWEEN

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D E C I S I O N

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

2.  The applicant filed Form 86 on 21 January 2020 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By affirmation dated 6 December 2022, the applicant applied to the court to withdraw his application and said that he wants to go back to Vietnam as it is safe to do so and further that he knows the consequences of this application.

4.  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.”

5.  The application was therefore dismissed and Form CALL-1 was issued on 5 May 2023 (“the Court’s Order”).

6.  On 7 September 2023, the applicant filed an application for extension of time to appeal the Court’s Order.

7.  Since the application has been dismissed upon the applicant’s application, there is no basis for him to appeal against the Court’s Order. Also, as the application had been dismissed and the Court’s Order had been sealed, there is no jurisdiction for this Court to deal with his application.

8.  The Court therefore makes no order for this application.