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HCAL 301/2018
[2019] HKCFI 1510
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 301 of 2018
BETWEEN
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Nguyen Van Cuong |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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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 Bruno Chan:
Applicant’s application for leave to apply for judicial review be adjourned and to be restored only if and when the Torture Claims Appeal Board has made a decision on his appeal.
Observations for the Applicant:
1. The applicant is a 41-year-old national of Vietnam who entered Hong Kong illegally on 25 August 2015 and surrendered to the Immigration Department on 28 August 2015 and subsequently lodged a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debt. He has since been released on recognizance pending the determination of his claim.
2. By a Notice of Decision dated 7 November 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
3. On 26 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”), but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim of fear of being killed by his creditor.
4. Upon enquiry made by the Court, the Board by a letter dated 27 July 2018 confirmed that it has not received any appeal/petition from the applicant but undertakes to inform the Court if and when it has made a decision on any appeal brought by the applicant.
5. In the premises the applicant’s application for leave to apply for judicial review is adjourned and to be restored only if and when the Board has made a decision on his appeal.
Dated the 13th day of June 2019.
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(NG Ka-wing)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 13 June 2019
Nguyen Van Cuong
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 13 June 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
(8) in L/M (10) to TCAB/1-20/1 Pt.7
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1290/16 (formerly RBCZ/10388/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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