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HCAL 563/2020
[2025] HKCFI 4474
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 563 OF 2020
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Sandeep Kumar |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 17 March 2020”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 8 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) Notice of Decision made by the Director of Immigration (“the Director”) dated 14 January 2019 (“the Director’s Decision”); and
(2) Decision of the Torture Claims Appeal Board (“the Board”) dated 17 March 2020 disallowing the applicant’s request to reopen his appeal/petition (“the Board’s Decision”).
2. The applicant first made his CAT claim[1] to the Director on 19 April 2009, which was rejected on 15 November 2013. The applicant then made a non-refoulement claim under the Unified Screening Mechanism (“the USM”) on 25 October 2013, which was rejected by the Director’s Decision.
3. The applicant filed a Notice of Appeal/Petition on 21 January 2019 to appeal/petition against the Director’s Decision to the Board. However, by way of a letter dated 18 April 2019 (“the Withdrawal Letter”), the applicant applied to the Board to withdraw his appeal/petition, and the reason given for the withdrawal was that he was safe to go back to India.
4. In response to the Withdrawal Letter, the Board sent a letter dated 25 April 2019 to the applicant seeking clarification regarding his application for withdrawal of his appeal/petition. At the end of the letter, the Board specifically mentioned that if the Board did not receive any reply from him on or before 2 May 2019, the Board would consider approving his application for withdrawal.
5. As the Board did not receive any reply from the applicant, the Board sent a letter dated 15 May 2019 to the applicant, in which the Board directed that the applicant’s appeal/petition was withdrawn and that the Director’s Decision was confirmed.
6. However, by way of a letter dated 11 March 2020 and received by the Board on 13 March 2020 (“the Re-opening Letter”), the applicant requested the Board to re-open his case.
7. In reply to the Re-opening Letter, the Board sent a letter dated 17 March 2020 (ie the Board’s Decision) to inform the applicant that his request for re-opening his appeal/petition was not allowed.
8. At the oral hearing before this court on 22 July 2025, there was some confusion as to which decision of the Board that the applicant was seeking leave to apply for judicial review. Neither this court nor the applicant had a copy of the Board’s Decision at the hearing. The applicant could not remember the date of the decision at the hearing either. It was thought that it could be the decision of the Board as contained in its letter dated 15 May 2019. Nevertheless, the applicant confirmed that there was no need to apply for leave in respect of the Director’s Decision, as he agreed that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549).
9. Subsequent to the hearing, this court obtained a copy of the Board’s Decision from the Immigration Department. Thus, it is clear now that the decision in respect of which relief is sought in the Leave Application is the Board’s Decision (ie the decision disallowing the applicant’s request to re-open his appeal/petition as contained in the Board’s letter dated 17 March 2020).
Amendments
10. In Form 86, the applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the putative respondent, when only the Board should be so named.
11. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
12. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
13. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 17 March 2020”.
The applicant’s case
14. It is not necessary for this court to state the details of the applicant’s case regarding his claim for non-refoulement protection here, as the only issue in the Leave Application is whether the Board’s Decision contained any errors of law, procedural unfairness or irrationality that warrants this court’s intervention by way of judicial review.
Oral hearing
15. The applicant requested for an oral hearing and his case was heard on 22 July 2025.
16. Although the applicant had annexed a document with the title “Grounds on which Relief is sought” to his Form 86, he confirmed at the hearing that he would not rely on the grounds asserted therein.
17. The applicant told this court that he wanted to stay in Hong Kong to be with his wife who is a local Chinese lady, but his application for residency was rejected by the Director, and filing the Leave Application was the only way for him not to be detained in custody.
Grounds for judicial review
18. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
19. As aforesaid, the applicant confirmed at the hearing that he would not rely on the grounds that were asserted in the document annexed to his Form 86. It is therefore unnecessary for this court to deal with the grounds stated therein.
20. The applicant did not state any ground for his intended judicial review in his supporting affirmation dated 8 April 2020, nor at the oral hearing as aforesaid. The fact that he was married to a local Chinese woman in Hong Kong is not a ground for judicial review at all.
Discussion
21. The main question here is whether the withdrawal of the applicant’s appeal/petition was valid or not. As held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, if the withdrawal or abandonment of the appeal is a valid one, 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. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the applicant’s application.
22. It is clear from the Withdrawal Letter and the Board’s letter dated 15 May 2019 that the applicant’s application to withdraw the appeal/petition was freely sought, and the applicant understood the consequences of his withdrawal. The Board was also satisfied that there was good reason for the applicant’s withdrawal, namely that the applicant considered it safe for him to return to India.
23. Clearly, the applicant did make a deliberate and informed decision to withdraw his appeal/petition. There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. The withdrawal of the appeal/petition by the applicant was therefore a valid one.
24. Moreover, section 37ZTA(2) of the Immigration Ordinance, Cap 115, stipulates that an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board. The Board did receive the Withdrawal Letter. Thus, irrespective of whether the Board gave the direction that the applicant’s appeal/petition was withdrawn or not, the appeal was withdrawn by virtue of section 37ZTA(2).
25. Although the applicant did file the Re-opening Letter to the Board, the Board was right in disallowing his request to re-open his appeal/petition and to conclude that his appeal/petition had been disposed of and finally determined by the Board, and that no further action would be taken by the Board in respect of his appeal/petition.
26. The Court of Appeal had held in Re Das Purnima Rani, supra, that once there was a valid withdrawal of the appeal/petition, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.
27. Thus, the Board was correct in the Board’s Decision. Its refusal to re-open the applicant’s appeal/petition could not be flawed.
28. This court finds no errors of law, procedural unfairness or irrationality in the Board’s Decision as contained in the Board’s Decision.
29. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 23rdday of September 2025
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( Irene LEE )
for Registrar, High Court |
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 his 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/Handed to the applicant/the applicant’s solicitors on:
23 September 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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:
23 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15364/19/1/237/IN3038
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4760/18
(formerly as RBCZ 2001673/14)
QA T/C 858/10
(formerly RBCZ/924/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] CAT is the abbreviation for the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Claims for non-refoulement protection under Article 3 of CAT used to be handled by the Immigration Department under an administrative screening mechanism prior to the implementation of the statutory scheme under Part VIIC of the Immigration Ordinance, Cap 115.
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