|
HCAL 2259/2020
[2025] HKCFI 4746
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2259 of 2020
| BETWEEN |
|
|
| |
Sangaiyan Raman |
Applicant |
| |
and |
|
| |
The Torture Claims Appeal Board |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
The application
1. The applicant has filed Form 86 for leave to apply for judicial review of the Decision dated 20 February 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). The Board advised the applicant that he had applied to the Board to withdraw his appeal/petition against the immigration officer’s decision as contained in the Notice of Decision 29 June 2018, attached to his Notice of Appeal/Petition of 10 July 2018.
2. The Board sent a letter to the applicant in an attempt to seek clarification from the applicant, but he did not respond to its letter.
3. The Board considered that his application for withdrawal of his appeal was made with the understanding of the consequences. The Board had taken into account that he said that it was safe for him to return to India.
4. Finally, the Board advised him that his appeal/petition had been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of his appeal/petition.
5. The applicant did not dispute the facts above.
The law
6. Section 37ZTA of the Immigration Ordinance (Cap. 115) provides:
(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.
(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”
7. In Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 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…. ”
Conclusion
8. It is clear that there is no reasonable prospect of success in the applicant’s intended judicial review of the Board’s Decision. As such, I dismiss his application.
Dated the 16th day of October 2025
| |
(Allen 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 the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 16/10/2025
Sangaiyan Raman
Applicant’s ref. no:
Nil.
|
|
Sent 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 16/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 12432/18/7/182/IN2486
Director of Immigration
Putative Interested Party’s ref. no.: RBCL 1220/10(CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|