BUI VAN NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 22/2024

[2024] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 22 OF 2024

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  The applicant then filed an affirmation dated 4 March 2024 to apply to the court for withdrawal of his application for judicial review of the Board’s Decision.

4.  In his affirmation, he said that he made the application because it was safe for him and his child to return to his country.

5.  Relying on the applicant’s evidence, the Court, by Form CALL-1 dated 24 April 2024 (the Court’s decision”), dismissed his application because there was nothing outstanding at that time.

6.  The applicant has now taken out an application for leave to appeal against the Court’s decision.

7.  In his affirmation in support of his application, the applicant said he made his application, relying upon his friend’s agreement to settle his debts in Vietnam. Now his friend has changed her mind and refused to settle his debt. He is therefore in fear that he will be harmed or killed by the creditor if her returns to Vietnam because he cannot repay his debt.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

9.  The Court has the discretion to deal with this application as Order 32 rule 6 of the RHC provides that the Court may set aside an order made ex parte if the applicant can support his application with good reason[1].

10.  This Court is aware that it has not considered the merits of the applicant’s case as he withdrew his application.

11.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, held:

“41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42.  The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

12.  The applicant has now raised the ground that his friend went back on her previous agreement of settling his debt in Vietnam for him. This ground does not assist his application for the reasons below:

(1)  At the time when he made his application, his reason in support of his application for withdrawal of his application was a valid reason.

(2)  The Court relied upon his evidence in his affirmation to make its decision, dismissing his application. At the time of making the application, there was no evidence that his reason given was not reliable.

(3)  His reasons now before the Court are self-serving, without any other evidence in support.

(4)  The applicant still has his choice of making a subsequent claim where he can explain to the Director the facts of his case. The immigration has full power to make investigation into his claimed reasons. This will also protect the public interest as mentioned by the Court of Appeal in Re Das Purnima Rani.

13.  For those reasons above, I refuse to extend time for the applicant to appeal the Court’s decision out of time. Accordingly, I dismiss his application.