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HCAL 1456/2021
[2023] HKCFI 2785
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1456 of 2021
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BETWEEN
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Pham Thi Tiem |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
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.
THE APPLICATION
1. This is the applicant’s second attempt of applying for torture claim. She first made her previous non-refoulement claim on 11 and 25 of August 2015 (“the previous claim”) and was rejected by the Director of Immigration (“the Director”) on 31 May 2017. Under section 37ZO of the Immigration Ordinance, Cap 115 (“the Ordinance”), the applicant’s second attempt is deemed to be a subsequent claim, subject to the conditions under section 37ZO (2) of the Ordinance[1].
2. The applicant applies for leave to apply for judicial review of the Decision dated 24 September 2021 of the Director of Immigration (“the Director’s Decision”), which rejected her subsequent claim application.
3. The applicant did request a hearing for her to explain her facts to the Court. The matter was therefore set down for hearing on 25 September 2023.
4. On 12 September 2023, the Court received a letter from the Immigration Department, enclosing a letter dated 30 August 2023 of the applicant (with translation) saying that she wants to withdraw her application because her problems in Vietnam have been solved and she wants to return to Vietnam.
5. 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.”
6. The application is therefore dismissed and the above hearing date is vacated.
Dated the 9th day of November 2023
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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 9/11/2023
Pham Thi Tiem
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 9/11/2023
Director of Immigration
Putative Respondent Party’s ref. no.:
L/M (24319) in ImmD RA 7/37/C (formerly RBCZ/13156/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 37ZO. Limitation on subsequent claim
(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.
(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—
(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and
(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.
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