PHAM VAN HANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 271/2022

[2024] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 271 of 2022

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D E C I S I O N

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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.  The applicant filed Form 86 on 27 April 2022 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By a letter dated 17 June 2024, the applicant applied to the Court to withdraw his application. In his affirmation, he said he wants to return to Vietnam as it is safe for him to return now.

4.  The Court acceded to his request and dismissed his application.

5.  By a letter dated 19 July 2024, the applicant applied to the court for re-opening his application because after his application for withdrawing his application, his mother told him that it is still not safe for him to return to Vietnam. He decides to stay in Hong Kong until his problem is solved.

6.  The Court of Appeal in Re Chamkaur Singh [2024] HKCA 457, Hon Chu VP and Au JA, 22 May 2024 held that under Order 32 rule 6 of the Rules of the High Court, the Court may set aside an order made ex parte. This Court, therefore, has the jurisdiction to deal with this application.

7.  The Court of Appeal further held:

“17. …, it is incumbent upon the applicant to show good cause for doing so. The applicant’s mere assertion that his problem is not yet solved is clearly insufficient to enable the court to exercise its power to re-consider his application for leave to apply for judicial review. For this reason, we are of the view that the applicant has failed to show merits in his intended appeal.”

8.  This Court further considers whether, at the time of making the order dismissing the application, there was any factor, which would vitiate the ex parte order. There is nothing that shows the ex parte order was tainted with illegality or irregularity. Therefore, the ex parte order should not be set aside.

9.  I dismiss the applicant’s application.