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HCAL 294/2020
[2023] HKCFI 3026
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 294 of 2020
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Yesmin Sumaiya |
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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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;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
1. The applicant remains in Hong Kong without permission of the Director of Immigration. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. She appealed to the Torture Claims Appeal Board (the “Board”). The Board dismissed her appeal.
2. The applicant filed Form 86 on 3 March 2020 for leave to apply for judicial review of the Board’s Decision.
3. The Court received a letter dated 3 November 2023 from the Immigration Department, in which it is stated:
“I refer to your letter 2 November 2023 enquiring the captioned person’s whereabouts. Please be informed that subject had been deported on 31 October 2023.”
4. By virtue of section 37ZF of the Immigration Ordinance, Cap. 115, the applicant is deemed to have withdrawn her application:
“7ZF. Deemed withdrawal of torture claim on claimant’s departure
(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”
5. There is nothing outstanding in this action.
6. 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.”
7. The application is therefore dismissed.
Dated the 5th day of December 2023
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(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:
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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 5/12/2023
Yesmin Sumaiya
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 5/12/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16231/19/8/93/B2076
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 516/19 (formerly RBCZ 115/19)[T1S130]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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