BASUNDHARA SAPKOTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
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HCAL 1172/2019
[2023] HKCFI 1428
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1172 of 2019
BETWEEN | ||
| Basundhara Sapkota | Applicant | |
| and | ||
| Torture Claims Appeal Board/ | Putative | |
| Non-refoulement Claims Petition Office | Respondent | |
| and | ||
| 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;
consideration of documents only; or consideration of documents and Applicant being absent in open court;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant remains in Hong Kong without permission of the Director of Immigration. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. She appealed to the Torture Claims Appeal Board (the “Board”). The Board dismissed her appeal.
2. The applicant filed Form 86 on 2 May 2019 for leave to apply for judicial review of the Board’s Decision.
3. The applicant filed an affirmation on 22 May 2019 to the court, in which she stated that she wanted to withdraw her application for judicial review. As her application was due to be heard, her application was not entertained for fear that she may revive her application after withdrawing her application.
4. The file was misplaced and was only brought to the Court’s attention recently. The Court attempted to confirm with the applicant on her intention of withdrawing her application. However, the court clerk was unable to locate her.
5. In the circumstances, the Court decides to consider her application for withdrawing her application as there is no evidence that she withdraws her application for withdrawal.
6. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi[2022] HKCA 471 at §19:
“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
7. The application is therefore dismissed.
Dated the 5th day of June 2023
| (M.O. WONG)(Ms) 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: | ||||
| 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)). | Sent to the Applicant on 5/6/2023 Basundhara Sapkota Applicant’s ref. no: Nil. | 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 5/6/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1424/15/4/116/N146; BOR 1027/17/10/30/N97 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1294/14 & RBCZ 9001260/16 (Formerly RBCZ 111/10)[T1 I5] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
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