LE HONG PHONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 957/2020

[2025] HKCFI 2858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 957 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 20 May 2020 and filed on 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 11 March 2019 (“the Board's Decision”), which was issued in the form of a letter dated 11 March 2019.

2.  As stated in the Board’s Decision, the Board had considered the applicant’s application to withdraw his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 April 2018 (“the Director’s Decision), which rejected the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (‘the USM”).

3.  After consideration, the Board was satisfied that the applicant’s application to withdraw was freely sought and that the applicant understood the consequences of the withdrawal. The Board was also satisfied that there was good reason for the applicant’s proposed withdrawal, namely the applicant considered it safe for him to return to Vietnam.

4.  Under the circumstances, the Board gave the direction that the applicant’s appeal/petition was withdrawn and the Director’s Decision was confirmed.

Amendments

5.  In Form 86, the applicant named “Torture Claim Appeal Board” and “Immigration department” as both the putative respondents and the putative interested parties. In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 21 May 2020, which was more than 14 months after the Board’s Decision (made on 11 March 2019). The applicant was hence late for more than 11 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.  The applicant did not make any application for extension of time. A delay of more than 11 months is very substantial, there is no justification for the delay when no explanation was given by the applicant. There is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

12.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenges regarding the Board’s decision in allowing his withdrawal of his appeal/petition to the Board and the Board’s confirmation of the Director’s Decision.

Grounds for judicial review

13.  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).

14.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation filed on 21 May 2020. The applicant only stated in the affirmation that he did not agree with the Board’s Decision, he wanted to file judicial review against the Board because he could not go back to his home country and his life would still be in danger over there.

Discussion

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.  Thus, despite that the applicant did not advance any specific ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

17.  In his written request to the Board dated 1 March 2019 to withdraw his appeal/petition, the applicant stated as follows:

“Notice for Withdrawal/Abandonment of Appeal/Petition

I): LE HONG PHONG withdraw my appeal / petition the reason For My Withdrawal is / are: I want to stop appeal. I want to return to VIETNAM. My difficulty has been solved. I understand that by withdrawing my appeal / petition, the decision which I had appealed and petitioned against will remain in force. I understand this is a Final disposal of My appeal and petition before the Torture Claims Appeal Board and Non-refoulement Claims Petition Office.”

18.  The main question here is whether the withdrawal/abandonment 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.

19.  In the applicant’s written request for withdrawal/abandonment of his appeal, the applicant stated clearly the reason for his withdrawal, ie his difficulty had been solved, and the applicant also confirmed his understanding of the consequences of his withdrawal, ie the Director’s Decision would remain in force and it was a final disposal of his appeal and petition. Clearly, the applicant did make a deliberate and informed decision to withdraw his appeal/petition.

20.  There is also no evidence to show that the applicant made the above withdrawal application other than out of his own volition. The withdrawal or abandonment of the appeal by the applicant was therefore a valid one.

21.  This court fails to see how the Board erred in acceding to the applicant’s request to withdraw or abandon his appeal/petition. The appeal/petition is therefore no longer extant and the Board becomes functus officio.

22.  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 applicant’s “Notice for Withdrawal/Abandonment of Appeal/Petition” dated 1 March 2019. 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). There is simply no substance in the applicant’s intended judicial review when the applicant had withdrawn the appeal/petition.

23.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that there was no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

25.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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