CU VAN DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1620/2020

[2023] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1620 OF 2020

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BETWEEN

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D E C I S I O N

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The application

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.  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.  By letter dated 11 November 2022, the applicant asked the Court to dismiss his application because he wanted to go back to his home country and that at that time, he was being detained in Tong Fuk Correctional Institution.

4.  By Order dated 26 April 2023 (“the Court’s decision”), the Court dismissed his application upon his application.

5.  The applicant filed a summons on 11 August 2023 for extension of time to file his notice of appeal and re-open his application. In his affirmation filed in support of his application, he said that he wanted to re-open his application and he was informed by his family members it is dangerous for him to return to Vietnam as he will be killed and that he has no means to employ a private lawyer.

Discussion

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

7.  As the applicant’s leave application has been dismissed upon his application and the court order has been sealed, this Court has no further jurisdiction to deal with his application. The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, the Court of Appeal held:

“41… …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, 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. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…”

8.  In the circumstances, the applicant’s application is dismissed.