RE TRAN VAN TIEN AND OTHERS

HCAL 1105/2019

[2022] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1105 OF 2019

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Before: Deputy High Court Judge K.W. Lung in Chambers

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D E C I S I O N

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The application

1.  The applicants are illegal immigrants by remaining without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected their joint application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered the evidence, the Board, by its Decision (the “Board’s Decision”), rejected their 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 applicants then filed an affirmation dated 11 November 2019 jointly applied to the Court to withdraw their joint application. They submitted that their problems in Vietnam had been solved and they wanted to return to Vietnam. They further confirmed that the Court may deal with their joint application on paper and their application be dismissed.

4.  By Form CALL-1 dated 27 December 2019 (“the Court’s decision”), the Court acceded to their application and dismissed their joint application.

5.  It may be because of pandemic COVID-19 virus spread in Hong Kong, the applicants were unable to return to Vietnam for the past two years.

6.  The applicants filed a summons on 7 June 2022 for extension of time to appeal against the Court’s decision.

7.  On behalf of himself and other applicants, the 1^st applicant filed an affirmation on 7 June 2022 in which he simply repeated the reasons why the family came to Hong Kong.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A of the RHC[1], having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

9.  Since the Court’s decision of dismissing their application is based upon their voluntary decision to withdraw their joint application, there is no valid ground from the applicants to say that the Court had committed any error in the Court’s decision.

10.  There is no realistic prospect of success in their intended appeal. I therefore refuse to extend time for them to appeal and I dismiss their application.