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HCAL 1375/2024
[2025] HKCFI 2673
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1375 of 2024
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Najimudin Sekh |
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 Levy:
1. The Form 86 is amended on the court’s own motion.
2. The Leave Application be dismissed.
Observations for the Applicant:
Background
1. By prescribed Form 86 filed on 20 August 2024, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2024 (“Board’s Decision”) in its refusal in allowing the applicant’s late filing of the Notice of Appeal against a decision of the Director of Immigration (“Director”) dated 20 February 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001375_2024_files/the_Board's_Decision.pdf
2. The basis of the applicant’s claim is that he would be harmed or killed by the members of the ruling party if he were refouled, because they wanted to build a road on his land. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
3. In the Form 86, the applicant did not name any party as the as the proposed interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
4. The applicant has requested for an oral hearing. However, the applicant recently filed an affirmation on 14 May 2025, applying for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
5. In his affirmation seeking for withdrawal, the applicant stated that he did not want to continue with the Leave Application as he wanted to go back to India due to his ill health.
6. In light of the applicant’s withdrawal application, the discussion of the Board’s refusal to allow the applicant’s late filing of the appeal against the Director’s Decision becomes moot. It is therefore not necessary to consider the line of authorities of the Court of Appeal regarding a Board’s decision to refuse the applicant’s late filing in Re Qasim Ali [2019] HKCA 430; Re Khan Kamal Ahmed [2019] HKCA 377 and recently Re Doyaoen Josephine Biba [2015] HKCA 482.
7. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
8. The Form 86 is amended on the court’s own motion.
9. The Leave Application be dismissed.
Dated the 30thday of June 2025
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( Alfred Chan )
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 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 Applicants
on 30/6/2025
Najimudin Sekh
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 30/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 23238
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 166/24 (formerly RBCZ 5000027/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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