Case Detail

DOPTORY MD KOBIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2024] HKCFI 502-EN-2024-03-01

DOPTORY MD KOBIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 2072/2019

[2024] HKCFI 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2072 OF 2019

_____________

BETWEEN

	Doptory Md Kobir	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

1 March 2024

_____________

D E C I S I O N

_____________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Order dated 30 December 2022 (“the Court’s decision”), the Court dismissed his application upon his application to withdraw his application.

4. By summons filed on 5 December 2023, the applicant applied for appeal the Court’s decision out of time.

Discussion

5. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

6. The Order of dismissal of the applicant’s application upon his application for withdrawal has been sealed on 30 December 2022. As such, the Court is functus insofar as the leave application is concerned. The Court therefore has no jurisdiction to entertain his application. See Nguyen Quang Hien & Others v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & Director of Immigration[2022] HKCA 1704, Hon Barma and Au JJA, 16 November 2022, paragraph 24.

7. Accordingly, I dismiss his application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.

HCAL 2072/2019

[2022] HKCFI 3837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2072 of 2019

BETWEEN
	Doptory Md Kobir	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative 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 is an illegal immigrant by staying in Hong Kong without permission of the Director of Immigration. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2. The applicant filed Form 86 on 22 July 2019 for application for leave to apply for judicial review of the Board’s Decision.

3. An affirmation was filed by the applicant with the court on 27 September 2022 to withdraw his application, in which he said he has no problem in his country and he wants to go back home.

4. 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.”

5. The application is therefore dismissed.

Dated the 30^th day of December 2022

(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

Notesfor 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 30/12/2022 Doptory Md Kobir 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 30/12/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12928/18/8/198/B1460 Director of Immigration Putative Interested Party’s ref. no.: RBCZ/11552/17 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;