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HCAL 41/2023
[2026] HKCFI 3321
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 41 of 2023
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BETWEEN
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BAUTISTA Ma Teresa Gabayeron |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (Non-refoulement Claims) Isaac Chan:
1. Application to withdraw the application for leave to apply for Judicial Review be granted; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. By a Form 86 filed on 11 January 2023 (“Form 86”), the applicant applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 15 July 2022 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 1 September 2021.
2. The present application was made more than 6 months after the Board’s Decision was made. It is therefore out of time under Order 53 rule 4 of the Rules of the High Court, Cap. 4A, which provides that an application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.
3. On the other hand, I notice from the supporting affirmation filed by the applicant that the Board has given the applicant two notices in respect of the Board’s Decision. The first notice was dated 15 July 2022, i.e. the same date as the Board’s Decision. The second notice was dated 5 January 2023, which referred to a letter from the applicant dated 23 December 2022 and received by the Board on 28 December 2022 (“December 2022 Letter”). The said letter was, however, not available in the evidence.
4. At the hearing on 6 May 2026:
a. I inquired with the applicant about the whereabout the December 22 Letter and the reason for failing to take out the present application within 3 months from the Board’s Decision.
b. The applicant confirmed that she did receive the first notice from the Board dated 15 July 2022, but at the time she panicked about going to jail and was not advised that she needed to apply for leave to apply for judicial review within 3 months if she so wished.
c. When further inquired, the applicant could not give a clear answer as to what prompted her to write to the Board in December 2022. In any event, the applicant explained that she took out the present application immediately after she received the second notice from the Board.
d. After explaining the timing of the Form 86, the applicant informed me of her wish to withdraw the present application as she wanted to return to the Philippines, of which she is a citizen.
e. Upon my further inquiry, the applicant re-confirmed her wish to withdraw the application and to return to her home in the Philippines as soon as possible.
5. In light of the circumstances as set out above, I am satisfied that the application to withdraw the Form 86 was based on an informed and voluntary decision of the applicant. I grant leave to the applicant to withdraw her application for leave to apply for judicial review under the Form 86. Given there is nothing outstanding, the action should not be left at large. The Form 86 should be dismissed accordingly: see Re Manik MD Mahamudun Nabi [2022] HKCA 471, at paragraph 19.
Dated the 10th day of June 2026
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(Wilinda YIU)
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 10/6/2026
BAUTISTA Ma Teresa Gabayeron
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 10/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18714/21/9/66/F1355
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1284/21 (formerly RBCZ 11256/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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