MQ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 85/2015

[2025] HKCFI 3794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 85 of 2015

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.  The Form 86 be amended by naming the Board as the 2^nd putative respondent; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 1 June 2015 for leave to apply for judicial review.  He was legally represented.  He named the Director of Immigration (the “Director”) and “Ms Betty Kwan, an adjudicator of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (the “Board”)” as the 1^st and 2^nd Respondent, respectively.  The Applicant identified three decisions as the decisions in respect of which relief is sought.  These are:

(1)  the decision of the Director, the 1^st Respondent, dated 19 February 2013 refusing his torture claim;

(2)  the decision of “Mr Wesley Wong, the 2^nd Respondent”, who was an adjudicator of the Board made on an unknown date, but notified to him on 19 April 2013 not to afford him an oral hearing of his appeal; and

(3)  the decision of “Mr Wesley Wong, the 2^nd Respondent”, dated 19 April 2013 dismissing his appeal against the Director’s Notice of Decision refusing his torture claim. 

2.  In fact at the material time, Ms Betty Kwan was the Chairperson of the Board and Mr Wesley Wong was one of the Board’s adjudicators.  It can be seen from the three decisions identified by the Applicant that he is not seeking leave to review any decision of Ms Betty Kwan.  Furthermore, in applications of this kind, the Board rather than the individual decision maker, whether the Chairperson or an adjudicator, should be the proper respondent and the Director should be the proper interested party and not respondent.  The name or the position of the decision maker only serves to identify the decision in respect of which relief is sought.  Thus, on its own motion, the Court amended the Form 86 by making the Board as the 2^nd Respondent.

3.  Enquiries with the Board and the Director revealed that the Director had made a decision in his Notice of Decision dated 9 March 2015 (the “Notice”) refusing the Applicant’s claim for non-refoulement protection.  The Applicant appealed to the Board.  Ms Betty Kwan heard the appeal by way of an oral hearing on 30 April 2015 and issued a decision dated 12 May 2015 dismissing his appeal on three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds.  The Director also confirmed that he had not issued any Notice of Decision or Notice of Further Decision dated 19 February 2013 or 19 April 2013 in respect of the Applicant.

4.  In 2017, the Director further assessed the Applicant’s claim under BOR 2 Risk[4] ground which then became available under the USM.  On 7 February 2017, the Director rejected the Applicant’s claim under BOR 2 Risk ground.  The Applicant appealed.  On 9 June 2017, the Board dismissed his appeal.  All these events and decisions occurred or came into existence after the leave application was filed and are irrelevant.  

5.  For the above reasons, none of the decisions in respect of which relief is sought exists.  When this leave application came to be processed by this Court, the Court discovered that the Applicant had already been removed on 7 August 2020.  The Court does not have the Applicant’s forwarding address.  Accordingly, a copy of this decision is sent to the Applicant’s solicitors with a request that they make their best endeavour to forward it to the Applicant.

Conclusion

6.  As the decisions in respect of which relief is sought do not exist, the leave application is refused for want of subject matter for review.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383