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HCAL 651/2020
[2025] HKCFI 2669
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 651 of 2020
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BEPARY, Rezaul |
Applicant |
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And
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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And |
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Director of Immigration
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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 (Non-refoulement Claims) YW Hew:
1. The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party, and naming the decision of the Torture Claims Appeal Board dated 27 March 2020 as the Judgment, order, decision or other proceeding in respect of which relief is sought;
2. Application to withdraw the application for leave to apply for Judicial Review be granted; and
3. Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. By a Form 86 dated and filed on 15 April 2020 (“Form 86”), which was supported by an affirmation also dated and filed on 15 April 2020 (“the Affirmation”), the Applicant sought “Change/Reversal of decision against the director of Immigration dated 16 December 2019.”
2. However, no relevant decision was made by any party on 16 December 2019 and the decision of the Director of Immigration was dated 28 September 2018.
3. 16 December 2019 was, however, the hearing date of the Applicant’s petition/appeal to an Adjudicator of the Torture Claims Appeal Board (“Adjudicator” and “TCAB” respectively). The said hearing was attended by the Applicant, after which the Adjudicator handed down a decision dated 27 March 2020 (“the TCAB Decision”) [1].
4. In the circumstances, and given also the two-tier system set out in Moshsin Ali [2018] HKCA 549, I took it and have proceeded on the basis that the Applicant sought leave to judicially review the TCAB Decision. I have hence amended the Form 86 of my own motion to reflect such.
5. The Applicant’s Form 86 names the TCAB and Director of Immigration (“DOI”) as the putative respondents, and does not name a putative interested party. I have hence amended the Form 86 of my own motion to name the TCAB/Non-Refoulement Claims Petition Office as the only putative Respondent, and the DOI as the putative interested party.
6. The Applicant, in his papers, requested an oral hearing of his leave application, which was scheduled for 9 June 2025.
7. On 4 June 2025, the Applicant filed an affirmation of that date (“the Withdrawal Affirmation”). The Withdrawal Affirmation was in English, but was interpreted to and affirmed by the Applicant with the assistance of a Bengali interpreter.
8. In the Withdrawal Affirmation, the Applicant affirmed that “Withdraw Judicial Review HCAL /651/2020. I want to go back to my home country because of all my problem has solved in my home country now. So I want to withdraw my judicial review and want to go back. Please help me.” and “Withdraw my JR.”
9. Although the Applicant did not attend the scheduled oral hearing before me, there was before me no indication that the Withdrawal Affirmation was made other than out of his own accord, volition, and free will. I consider that it amounted to, and I shall treat such as, an application by the Applicant to withdraw his application for leave for judicial review.
10. I therefore accede to the Applicant’s request to withdraw his application for leave, without adjudicating on the merits of the application for leave. As I do not consider that there is anything outstanding, and the action should not be left at large, I hence further order that the leave application be dismissed: see Re Manik MD Mahamudun Nabi [2022] HKCA 471 at paragraph 19; Luu Van Hoc v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCA 653 at paragraph 25; Ferrolino Jasmin Puno v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2023] HKCA 1073 at paragraph 16; Ngo Xuan Tuyen v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2024] HKCA 1140 at paragraphs 7 and 14; Re Nguyen Thi Lo [2023] HKCA 1141 at paragraph 11.
Dated the 26th day of June 2025
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(Edison Ho)
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 his 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 26/06/2025
BEPARY, Rezaul
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
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13794/18/10/136/B1595
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3315/18
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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