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HCAL 890/2024
[2025] HKCFI 2854
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 890 of 2024
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Nopiyana |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
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 To:
1. Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 4 June 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing her appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection (the “Decision”).
Discussion and conclusion
2. On 14 May 2025, the Applicant applied by affirmation to withdraw her leave application (the “withdrawal application”) asserting that it is now safe for her to return to her home country and that she wishes to return. To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 10 June 2025 (the “directions letter”) to file an affirmation or a statement confirming:
(a) that her withdrawal application is made out of her own free will;
(b) that she will be safe to return to her home country; and
(c) that she understands that if her withdrawal application is approved, the Decision of the Board dismissing her appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection remains in force.
She was also advised that if no affirmation or statement shall have been filed as required, her withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless she informs the Court of her intention to proceed with the leave application within 14 days of the directions letter.
3. On 19 May 2025, the Applicant responded by repeating her assertion that the problem in her home country had been solved and it will be safe for her to return. However, she did not confirm that she made the withdrawal application out of her own free will and understood the consequences if her withdrawal application is allowed as required in the directions letter. Fourteen days have lapsed since the date of the directions. As at the date of this Form CALL-1, the Applicant has not fully complied with the directions in the directions letter. In the light of the Court’s directions, the Applicant must understand that if she does not respond, her withdrawal application may be refused and her leave application may be determined or dismissed for want of prosecution. Her withdrawal application also evinces a lack of intention to prosecute her leave application.
4. Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. Having also rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no apparent errors of law or procedural unfairness in the Decision or in the making of the Decision. The Decision is not Wednesbury unreasonable or irrational. The Court therefore considered it appropriate to refuse her withdrawal application and dismiss her leave application for want of prosecution.
Dated the 7th day of July 2025
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( Seline Sze ) |
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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 07/07/2025
Nopiyana
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 07/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22907
Director of Immigration
Putative Interested Party’s ref. no.:
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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