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HCAL 2276/2019
[2024] HKCFI 2979
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2276 of 2019
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BETWEEN
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Entendez Irene Wabe |
1st Applicant |
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Sacdalan Marco Entendez |
2nd Applicant |
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and |
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The 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:
1. The application for leave to apply for Judicial Review be dismissed; and
2. A copy of this Form CALL-1 and the sealed order shall be sent to the Director with the request that he uses his best endeavour to forward them to the applicant.
Observations for the Applicants:
1. The applicants are mother and son. They were an illegal immigrants. They had jointly made non-refoulement claim to the Director of Immigration (“the Director”). The Director refused their claim. They appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) The Board dismissed their appeal.
2. The applicant’s claim is based on the mother’s fear that, if refouled, they will be harmed or killed by her ex-husband for having given birth to a child she had with another boyfriend in Hong Kong. The Director found that her claim was unsubstantiated. On appeal, the Board found that the applicants were unable to make out their claims.
3. The applicants filed Form 86 on 8 August 2019 to apply for leave to apply for judicial review of the Board’s Decision. The mother has raised no valid reason to challenge the Board’s Decision.
4. The Immigration Department informed the Court that the applicant has been removed, which means the applicants have already left Hong Kong.
5. Section 37ZF of the Ordinance provides, inter alia,
“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.”
6. Final determination includes the judicial review proceedings[1].
7. There is nothing outstanding in this action. The Court will refuse to grant the relief as it will serve no practical purpose since the applicants have returned to his country[2]. For case management, this application should be dismissed.
8. The application is dismissed.
9. A copy of this Form CALL-1 and the sealed order shall be sent to the Director with the request that he uses his best endeavour to forward them to the applicants.
Dated the 12th day of November 2024
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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 12/11/2024
Entendez Irene Wabe
and
Sacdalan Marco Entendez
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 12/11/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15841/19/4/99/F1059;
USM 15842/19/4/100/F1060
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 194/19 (formerly RBCZ 10101/19);
QA T/C 195/16 (formerly RBCZ 10102/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Re: Aioub Ali [2019] HKCA 1329. Hon Lam VP (as he then was), Wong and S T Poon, 2 December 2019, held:
“16. Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final. Final means final in terms of administrative process. However, such statutory provision does not exclude judicial review. In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above.”
[2] The Court of Appeal in AW v Director of Immigration and William Lam CACV 63/2015, Hon Lam VP, Kwan and Poon JJA (as they then were), 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).”
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