CU VAN DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CU VAN DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Because the applicant himself caused the dismissal of his leave application and the court order has been sealed, the court has no jurisdiction to re-open or revive the dismissed proceedings; the Board becomes functus officio and the only available route is to bring a fresh non-refoulement claim under s 37ZO(2).

Citation
[2023] HKCFI 2247
Parties
Applicant: Cu Van Duc; Putative Respondent: Torture Claims Appeal Board / Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 September 2023
Case Number
HCAL1620/2020
Procedural Posture
Leave to Apply for Judicial Review (non Refoulement/torture Claim) / Leave Application Dismissed by Consent; Applicant Sought Extension of Time to Re Open and File Notice of Appeal
Outcome
Application dismissed
Legal Topics
Non Refoulement, Torture Claim, Judicial Review, Functus Officio, Extension of Time
Source Language
EN
Administrative Law Constitutional Law Immigration Law Human Rights Law Non Refoulement Torture Claim Judicial Review Functus Officio +1 more

Case Brief

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Parties

Cu Van Duc

Applicant

Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Leave to Apply for Judicial Review (non Refoulement/torture Claim) / Leave Application Dismissed by Consent; Applicant Sought Extension of Time to Re Open and File Notice of Appeal

Legal Issues

  1. 1 Whether the court retains jurisdiction to re-open a leave application after the applicant requested dismissal and the order was sealed
  2. 2 Whether an applicant can obtain extension of time or reinstatement of proceedings after a valid withdrawal/dismissal
  3. 3 Whether the only remedy after a valid withdrawal is to bring a fresh non-refoulement claim under s 37ZO(2)

Ratio Decidendi

Because the applicant himself caused the dismissal of his leave application and the court order has been sealed, the court has no jurisdiction to re-open or revive the dismissed proceedings; the Board becomes functus officio and the only available route is to bring a fresh non-refoulement claim under s 37ZO(2).

Court Disposition

Application dismissed

Orders

  • Application dismissed