CARAMAT VIRGINIA LOBEBAN v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

HCAL 497/2023

[2023] HKCFI 1261

 

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 497 of 2023

BETWEEN
	Caramat Virginia Lobeban	Applicant
	and
	Director of Immigration	Putative
		Respondent

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 overstaying. She lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration (“the Director”). She appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, her appeal was dismissed by the Board. She had taken her case to the High Court and the Court of Final Appeal. All her applications were dismissed. She then made a subsequent claim with the Director. By Notice of Decision dated 16 November 2021 (“the Director’s Decision”), the Director rejected her application for subsequent claim.

2.  The applicant filed Form 86 on 29 March 2023 for application for leave to apply for judicial review of the Director’s Decision.

3.  However, the next day, the applicant lodged a letter to the Court, saying she wants to withdraw her application because she had appeared before a master of the High Court, who had given her advice as recorded in writing. She understands all the consequences and this is why she applies to withdraw her application.

4.  In order to ascertain whether the applicant’s decision to withdraw her application is out of her free will without any undue influence, the Court has referred to the record of the hearing before the master. Below is the master’s record in writing:

“COURT: Applicant’s attention has been drawn to (i) recent judgment of the court and (ii) the possible costs consequences.

If the Applicant decides to file the intended application / need time to consider the intended application

No order made

(papers be returned to the Applicant by clerk, Applicant proceed to LG1 if necessary.”

5.  This Court is satisfied that the applicant is aware of her consequences if she proceeds with her application and on second thought, she wants to withdraw her application.

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 18^th day of May 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

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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 18/5/2023 Caramat Virginia Lobeban 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 18/5/2023 Director of Immigration Putative Respondent’s ref. no.: L/M (24451) in ImmD RA 7/37/C (formerly RBCZ/9001404/16 & RBCZ/1842/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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Form CALL-1