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HCAL 1439/2021
[2024] HKCFI 2934
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1439 of 2021
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Quitoy Albert Gelvez |
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 |
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 15 October 2021 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 his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection (the “Decision”).
Discussion and conclusion
2. On 12 August 2024, the Applicant applied by affirmation and on 27 August 2024, the Applicant applied by affidavit to withdraw his leave application (the “withdrawal application”) asserting that it is now safe for him to return to his home country and that he wishes to return. To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 20 August 2024 and 2 September 2024 (the “directions letter”) to file an affirmation or a statement confirming:
(a) that his withdrawal application is made out of his own free will;
(b) that he will be safe to return to his home country; and
(c) that he understands that if his withdrawal application is approved, the Decision of the Board dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection remains in force.
He was also advised that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless he informs the Court of his intention to proceed with the leave application within 14 days of the directions letter.
3. Fourteen days have lapsed since the date of the directions. As at the date of this Form CALL-1 the Applicant has not filed any affirmation or statement or responded. In the light of the Court’s directions, the Applicant must understand that if he does not respond, his withdrawal application may be refused and his leave application may be determined or dismissed for want of prosecution. His withdrawal application also evinces a lack of intention to prosecute his leave application.
4. Having 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 his withdrawal application and dismiss his leave application for want of prosecution.
Dated the 5th day of November 2024
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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 05/11/2024
Quitoy Albert Gelvez
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 05/11/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17302/20/10/51/F1210
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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