PHAM TUAN ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1533/2022

[2026] HKCFI 4791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1533 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.  The Torture Claim Appeal Board / the Non-refoulement Claims Petition Office be named as the putative Interested Party

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 19 December 2022 (“Form 86”), the applicant applied for leave to apply for judicial review against the decision of the Director of Immigration (“Director”) dated 8 March 2022 rejecting the applicant’s non-refoulement claim (“Director’s Decision).

2.  It can be seen from the documents available to the Court that the applicant in fact filed a notice of appeal to the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) on 21 March 2022.

3.  On 20 April 2022, the applicant wrote to the Board to withdraw the intended appeal because his wife was gravely ill (“Withdrawal Letter”). The applicant confirmed that he withdrew the appeal upon his own free will and he fully understood the consequences of withdrawing the appeal. He stipulated that he was bringing the appeal to an end even though the merits of the appeal had not been determined.

4.  On 22 April 2022, the Board wrote to the applicant to acknowledging receipt of the Withdrawal Letter. The Board further stated that unless the applicant advised the Board otherwise, the Board presumed that (i) the applicant was withdrawing the appeal against the Director’s Decision dated 8 March 2022, (ii) the application to withdraw the appeal was freely sought, (iii) the applicant withdrew the appeal out of his own free will, (iv) it was safe for the applicant to return to Vietnam, and (v) the applicant understood the consequences of his withdrawing the of the appeal, including the applicant was bringing the appeal to an end even though the merits of which have not been determined, no further action should be taken in relation to the appeal and the Director’s Decision that the applicant sought to appeal against remained in force. The applicant was further advised by the Board to seek independent legal advice on the consequences of the proposed withdrawal under his applicant. The Board also stipulated that if the applicant did not reply on or before 29 April 2022, the Board would consider approving his application for withdrawal.

5.  On 5 May 2022, the Board further wrote to the applicant to approve the withdrawal of the appeal against the Director’s Decision.

6.  On 19 December 2022, the applicant filed the Form 86.

7.  In Re Moshsin Ali [2018] HKCA 549, the Court of Appeal has conducted a review of the statutory scheme regarding the two-tier process for the non-refoulement claims and held at §45 held that the decision of the immigration officer is not a decision that, within the administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by the claimant.

8.  In Re Raschpal Singh [2020] HKCA 978 at §41, the Court of Appeal held that it is a well-established principle of judicial review law that judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist. The Court of Appeal further held that the procedure of an appeal to the Board (with its wide review functions as set out in Re Moshsin Ali) is a suitable alternative safeguard, of which the claimant could avail himself, and such suitable alternative safeguard alone could be the ground to refuse to give leave to commence judicial review against the Director’s decision without the need to go into the merits of the same even if the claimant has withdrawn the appeal to the Board.

9.  Consistently, section 37ZTA of the Immigration Ordinance, Cap. 115 (“Ordinance”), provides that once an appeal to the Board is withdrawn, the non‑refoulement claimant cannot file further notice of appeal:

“Withdrawal of appeal

(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

10.  The legislative intent behind statutory scheme for processing non-refoulement claim, in particular the bar from refiling further notice of appeal to the Board upon the withdrawal of an earlier notice, is apparently to achieve finality of the process. To allow a claimant to apply for judicial review against the Director’s decision after the withdrawal of the notice of appeal to the Board would defeat the intended finality under section 37ZTA of the Ordinance.

11.  I therefore hold that the Director’s Decision is not susceptible to judicial review and dismiss the application for leave to apply for judicial review under the Form 86.

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