NGUYEN NGOC ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2231/2020

[2023] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2231 OF 2020

________________________

________________________

________________________

D E C I S I O N

________________________

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 6 November 2020 for leave to apply for judicial review of the Board’s Decision. 

3.  The Immigration Department sent a letter dated 2 September 2022 to the Court, in which it stated that the applicant wanted to withdraw her application. The applicant’s letter dated 2 September 2022 was also enclosed for the Court’s attention. The contents of this letter said that she would like to return to her home country, Vietnam. Her problem in Vietnam had been solved and she would like to withdraw her judicial review application.

4.  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.”

5.  By the Court’s Order dated 18 October 2022 (“the Court’s Order”), her application for leave to apply for judicial review of the Board’s Decision was dismissed.   

6.  The applicant filed a summons and an affirmation on 24 February 2023, applying for appeal of the Court’s Order.

7.  Since the application for leave to apply for judicial review of the Board’s Decision has been dismissed, the Court has no further jurisdiction to deal with the applicant’s application. In fact, since the dismissal of the applicant’s application for leave to apply for judicial review of the Board’s Decision was made with the express consent of the applicant, there is nothing that the applicant can appeal against.  

8.  I dismiss her application for appeal out of time.