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HCAL 3781/2019
[2025] HKCFI 1782
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3781 of 2019
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Nguyen Khac Chung |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 18 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against an alleged decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 8 September 2019.
2. In the Form, the Applicant has named the Board as both the proposed respondent and proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.
3. The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant simply stated that he disagreed with the decision of the Board, and that he did not want to go back to Vietnam as his life would be in danger there.
4. The Applicant had requested an oral hearing for the application. The hearing took place on 14 March 2025 and the Applicant attended in person.
Discussion
5. This Court is not aware of the existence of a decision issued by the Board on 8 September 2019. On 16 August 2019, the Board issued a letter to the Applicant (the “16 August 2019 Letter”) which indicated that the Applicant had applied to withdraw his Notice of Appeal/Petition dated 1 December 2017 (the “Appeal”) on 9 August 2019 (the “Withdrawal Application”). In the 16 August 2019 Letter, the Board stated that it had considered the Withdrawal Application and granted the withdrawal. The Board further stated that the Appeal had now been disposed of and finally determined by the Board.
6. At the hearing on 14 March 2025, I explained the above to the Applicant. The Applicant however said that he had applied to re-instate the Appeal, and insisted that there was a decision issued by the Board on 8 September 2019. When asked whether he had a copy of the alleged decision, the Applicant said he did not have the decision with him.
7. Based on what the Applicant said at the hearing, enquiries were made to both the Board and the Immigration Department on the following:-
(1) Whether there was any document/decision issued by the Immigration Department or the Board to the Applicant on 8 September 2019;
(2) After the 16 August 2019 Letter, whether there was any other letters/decisions issued by the Board to the Applicant; and
(3) Whether the Applicant had applied to reinstate his appeal before the Board subsequently.
8. On 24 March 2025, the Immigration Department issued a reply to the Court and stated that the Immigration Department did not issue any document or decision to the Applicant on 8 September 2019 in respect of the Applicant’s Non-refoulement claim and/or the Leave Application. As regards Points (2) and (3), the Immigration Department indicated that these issues fall under the jurisdiction of the Board and so it was not in a position to provide any confirmation.
9. On 21 March 2025, the Board issued a reply to the Court and confirmed that no decision or document was issued to the Applicant on 8 September 2019. The Board further attached two letters issued by the Applicant to the Board on 24 October 2019 and 11 November 2019, and the Board’s reply to the Applicant dated 14 November 2019.
10. The two letters issued by the Applicant to the Board dated 24 October 2019 and 11 November 2019 were request to re-open his Appeal before the Board. In the reply dated 14 November 2019 issued by the Board, the Board stated that the Applicant’s Appeal had already been dismissed as a result of the Withdrawal Application. As such, the Appeal had been disposed of and had been finally determined by the Board. The Board was accordingly “functus officio”.
11. Based on the above, it is clear that there was no decision issued by the Board on 8 September 2019 susceptible to be reviewed as alleged in the Form. The Leave Application shall be dismissed accordingly.
12. In so far as the Applicant is applying for leave to commence judicial review in respect of the Board’s refusal to “re-open” the Appeal, such application would be misconceived as the Board was correct in its view that it was functus: Re Raschpal Singh [2020] HKCA 978, at §§44-45; Re Ali Usman [2018] HKCA 955, at §25.
13. Finally, in so far as the Applicant is applying for leave to commence judicial review in respect of the Director’s decision dated 21 November 2017, such application would also be misconceived: Re Raschpal Singh op. cit., at §§40-42.
Conclusion
14. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 2nd day of May 2025.
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(Allen LEE) |
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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:
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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)).
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Sent to the Applicant
on 2/5/2025
Nguyen Khac Chung
Applicant’s ref. no:
Nil |
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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 2/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9349/17/12/16/V1833
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2615/17 (formerly RBCZ/11502/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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