NGUYEN TUAN VIET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 976/2022

[2024] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 976 OF 2022

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D E C I S I O N

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1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  The applicant filed Form 86 on 21 September 2022 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By affirmation filed on 28 February 2024, the applicant applied to withdraw his application because it is safe for him and his child to return to his country.

4.  Other than this application, there was nothing outstanding in this action.

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 was therefore dismissed.

7.  By affirmation dated 22 August 2024, the applicant applies to re-open his application because things are not going as he thought, so he now does not want to return to his country, a bare assertion without any evidence in support.

8.  Since he admits that he made his application for withdrawal out of his own free will, the Court will not allow the order to be set aside upon his bare assertion without any evidence to support, otherwise the application for withdrawal will be abused and the application will not be finalized.

9.  In the circumstances, this Court refuses the applicant’s application to set aside its order of dismissing his application for judicial review of the Board’s Decision.