KHAN ASFAQUE v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]
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HCAL 519/2023
[2023] HKCFI 1054
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 519 of 2023
BETWEEN | ||
| Khan Asfaque | 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. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration (“the Director”). He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board. He had taken his case to the High Court and the Court of Final Appeal. All his applications were dismissed. He then made a subsequent claim with the Director. By Notice of Decision dated 15 December 2021 (“the Director’s Decision”), the Director rejected his application for subsequent claim.
2. The applicant filed Form 86 on 31 March 2023 for application for leave to apply for judicial review of the Director’s Decision. The Court had fixed the hearing date on 8 May 2023 on his application for judicial review and whether restrictive proceedings order should be imposed on the applicant.
3. Before the Court hears the case, the applicant, by affirmation dated 14 April 2023, applied to withdraw his application because he wants to go back to his country as his problems have been solved and his mother is very sick and he wants to return to his country as soon as possible. There is nothing outstanding in his action.
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 25th day of April 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 25/4/2023 Khan Asfaque 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 25/4/2023 Director of Immigration Putative Respondent’s ref. no.: L/M (24346) in ImmD RA 7/37/C (formerly RBCZ/11794/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
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