NGUYEN HUU HOA v. THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;       or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 5 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review. The subject decision under challenge referred to in the Form 86 was one dated 23 January 2017; this was a decision of the Director of Immigration (the “DOI”). Subsequently the Applicant lodged a petition / appeal to the Torture Claims Appeal Board (the “TCAB”) on 3 February 2017 against that decision.

2.  By letter dated 16 April 2018, the Applicant wrote to the TCAB withdrawing the appeal / petition because, in his own words, he was “safe to return”. The Applicant specifically stated in the letter that he “[understood] the consequences of the proposed withdrawal” and his appeal / petition “cannot be re-opened after withdrawal”.

3.  The TCAB wrote back on 19 April 2018 confirming the withdrawal (the “TCAB Decision”). I will treat the present application as one for leave to apply for judicial review against the TCAB Decision (for a judicial review does not lie against the DOI’s decision).

4.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party.

5.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In his supporting affirmation, the Applicant stated that he did not agree with the TCAB Decision (pausing here, this is a clear indication that the present application seeks to challenge the TCAB Decision) and his life remained in danger.

10.  I further note that there is an undated letter apparently from the Applicant’s parent(s) informing him that that the danger still remained.

11.  In my judgment, the TCAB was plainly right to have agreed to the Applicant’s own application to withdraw his non-refoulement claim. The TCAB also rightly took into account whether there were good reasons for the withdrawal (that it was safe for the Applicant to return to Vietnam), and it was also satisfied that the withdrawal was freely sought. The Applicant’s withdrawal letter indeed specified that there would be no basis to re‑open his non-refoulement claim. The fact that there were (apparently) change of circumstances (whether from the letter from the parent(s) or otherwise) does not render the TCAB Decision incorrect, unfair or irrational in the public law sense.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (and there was no explanation for the delay).

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

Form CALL-1