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HCAL 2277/2019
[2025] HKCFI 512
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2277 of 2019
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BETWEEN
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Do Van Quang |
Applicant |
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Director of Immigration |
Putative |
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Respondent |
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 Levy:
1. The Form 86 is amended on the court’s own motion; and
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 8 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 23 November 2017 (“Director’s Decision”) rejecting the applicant’s application to re-open his non-refoulement claim.
2. In Form 86, the applicant named the Torture Claims Appeal Board (“Board”) and the Director together as the proposed respondents. As the Director should have been the proper proposed respondent, Form 86 will be amended accordingly on the court’s own motion.
3. As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 31 December 2024. The applicant attended in person.
Background
4. The background as taken from the Director’s Decision can be briefly stated as follows.
5. The applicant is a national of Vietnam. The applicant lodged his non-refoulement claim on 26 November 2015. On 5 October 2016, the applicant was served with a Notice and Non-refoulement Claim Form (“NCF”) and accepted publicly-funded legal assistance provided by the Duty Lawyer Service (“DLS”) on the same day. On 26 October 2016, the Director sent a letter to DLS requesting the return of a completed NCF in writing within the 28-days’ submission limit. On 1 November 2016, the DLS informed the Director that the applicant wished to withdraw the non-refoulement application. On 3 November 2016, the Director acknowledged the receipt of the notice of the applicant’s withdrawal.
6. On 6 November 2017, the Director received the applicant’s written request requesting to re-open the non-refoulement claim, claiming that his life was still in danger if were refouled to Vietnam.
7. In the Director’s Decision, the Director decided against the applicant’s request to re-open his non-refoulement claim and refused to re-open the applicant’s claim.
8. The applicant did not appeal to the Board. Almost two years later, he filed the Leave Application.
Section 37ZR of the Immigration Ordinance (Cap 115) (“Ordinance”)
9. The right of appeal to the Board is set out in section 37ZR which provides:
“Appeal
A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board [1]if the decision is made in respect of the person under—
(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);
(b) section 37ZI(1)(b) (decision rejecting a torture claim); …”
10. According to the provisions, the applicant in these proceedings would have been required to appeal to the Board against the Director’s Decision in refusing to re-open his claim. His intended challenge to the Director’s Decision without having appealed to the Appeal Board as required by the Ordinance has plainly fallen foul of the procedural requirement, and is irregular.
11. The Board is statutorily empowered to “review the merits of the case”. Whether the Board’s decision to reverse or to confirm the decision of the Director, its decision is final. The Court of Appeal in Moshsin Ali[2] has explained the unique statutory structure that:
“[43]… what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims. The first tier is by an immigration officer and the second tier by a member of the board …
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[45] All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing …”
12. By having failed to follow the obligatory statutory procedure, the applicant’s intended challenge shall stand dismissed.
Discussion and Conclusion
13. At the hearing, I asked the applicant to confirm if he had appealed to the Board against the Director’s Decision. He gave a very confusing account as to what documents he had prepared. After some inquiries, it was firmly established that the applicant had not filed any appeal to the Board as required by the Ordinance.
14. For these reasons, the Leave Application is clearly unarguable with no realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Orders
15. The Form 86 is amended on the court’s own motion.
16. The Leave Application be dismissed.
Dated the 28th day of January 2025
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(Allen LEE)
for Registrar, High Court
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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 28/1/2025
Do Van Quang
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 28/1/2025
Director of Immigration
Putative Respondent’s ref. no.: L/M (17459) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 37U(1), the Immigration Ordinance Part VIIC(1)-(3), “ Appeal Board means the Torture Claims Appeal Board established by section 37ZQ”.
[2] [2018] HKCA 549.
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