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HCAL 998/2021
[2025] HKCFI 1606
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 998 of 2021
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BETWEEN
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Nguyen Tien Son |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant was an illegal immigrant and had made non-refoulement claim to the Director of Immigration (“the Director”). The Director refused the claim. The applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and by the Board’s Decision, the appeal was dismissed.
2. The applicant filed Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
3. The Court received information from the Immigration Department that the applicant has deceased.
4. For the purpose of case management and the reasons below, this application should be dismissed for the reasons below.
(1) The action has come to an end, with no party surviving it. Paragraph 15/7/2 of The Hong Kong Civil Procedure 2025, Vol. 1:
“ Abatement of action - If death terminates the cause of action, or the interest of the party, the action is at an end (Bowker v Evans (1885) 15 Q.B.D. 565, CA; Phillips v Homfray (1883) 24 Ch.D. 439 at 456, CA; Batthyany v. Wakfird (1887) 36 Ch.D. 269 at 281, CA; James v. Morgan [1909]1 K.B. 564”
(2) The court will not grant the remedy sought in the action as it will serve no practical purpose. The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, Hon. Lam VP, Kwan and Poon JJA, 3 November 2015 held:
“ 67. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1). …”
5. I dismiss the applicant’s application.
Dated the 20th day of May 2025
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(M.O. WONG)(Ms)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 20/5/2025
Nguyen Tien Son
Applicant’s ref. no:
Nil |
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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 20/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17758/21/3/77/V2805
Director of Immigration
Putative Interested Party’s ref. no.:
VRD/175/1/20 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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