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HCAL 2858/2019
[2025] HKCFI 3430
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2858 of 2019
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Tabuy Ruzzel Pascual |
1st Applicant |
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Tabuy Roshan |
2nd 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 be amended on the court’s own motion.
2. The 1st and 2nd applicants’ application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 27 September 2019, the 1st and 2nd applicants 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 28 September 2018 (“Board’s Decision”) dismissing the applicants' appeal against a decision of the Director of Immigration (“Director”) dated 22 December 2017 (“Director’s Decision”) rejecting the applicants’ non-refoulement claim.
2. The 1st and the 2nd applicants are mother and son, who is a minor. The 1st applicant filed the Leave Application on behalf of the 2nd applicant. In their Form 86, the applicants named the adjudicator of the Board as the proposed respondent and the Board as the interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 is amended accordingly on the court’s own motion.
3. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. As the 2nd applicant was not legally represented, the court had written to the 1st applicant to remind her to approach the Legal Aid Department or to engage a private lawyer to represent the 2nd Applicant.
4. At the scheduled hearing on 31 July 2025, the applicants attended in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra).
Application to withdraw
5. At the hearing, the 1st applicant made submissions for herself and on behalf of the 2nd applicant. She told the court that they would like to apply to withdraw the Leave Application, as they wanted to go back to Philippines as soon as possible. The 1st applicant also submitted a letter she wrote in English setting out the reason for their application for withdrawal. The reasons being that the 1st applicant’s daughter in Philippines is sick and that her mother will undergo a cataract surgery soon. The 1st applicant also updated the court that her eldest brother who was the source of the applicants’ fear had passed away. It is safe for them to return. The 1st applicant (also on behalf of the 2nd applicant) confirmed that the application to withdraw was made freely and that she understood the consequences of the withdrawal – the Board’s Decision shall stand.
6. 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 I should grant leave to the applicant to withdraw 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.
Order
7. The Form 86 be amended on the court’s own motion.
8. The 1st and 2nd applicants’ application for leave to apply for judicial review be dismissed.
Dated the 11th day of August 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 Applicant
on 11/8/2025
Tabuy Ruzzel Pascual,
Tabuy Roshan
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 11/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9769/18/1/42/F520, USM 9770/18/1/43/F521
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3041-3042/17 (formerly RBCZ/10303-10304/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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