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HCAL 1648/2021
[2022] HKCFI 453
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1648 of 2021
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Hoang Trong Giang |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 November 2021 (the “2021 Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 1 November 2021 (the “Decision”). The application was dated 17 November 2021 but filed on 3 December 2021 together with a supporting affirmation.
2. Enquiries with the Director revealed that the Director issued a notice of decision on 17 November 2016 (the “2016 Notice”) rejecting the Applicant’s non-refoulement claim lodged on 6 March 2014 (the “2014 Claim”). The Applicant was then repatriated back to Vietnam on 6 February 2018. He then re-entered Hong Kong illegally. He was arrested by the police on 19 September 2021. He claimed to have entered Hong Kong illegally on 1 June 2021. On 27 September 2021, he lodged a second non-refoulement claim (the “2021 Claim”). The 2021 Claim was rejected by the Director in his 2021 Notice.
3. Enquiries with the Board revealed that there is no record of any person bearing the name of the Applicant having filed any appeal/petition against non-refoulement claim decision with the Board. As a matter of procedure, the Board hears appeals against decision of the Director in the Notice. Common sense dictates that it is impossible for the Board to have heard the appeal against the Director’s decision in the Notice and made its decision on the very date that Notice was issued. The alleged Decision dated 1 November 2021 does not exist.
4. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board. If the Applicant is not satisfied with the decision of the Director in the Notice, he should have invoked those procedures; but he has not. Had he done so, the Board would have issued a decision which would have superseded the Director’s decisions in the 2021 Notice. Hence, the Director’s decision in his notice of decision is not susceptible to judicial review: Re Moshsin Ali[1]. It would be an abuse of process by by-passing the Board to seek judicial review of the decision of the Director in the 2021 Notice.
5. Under section 37ZS of the Immigration Ordinance, a person who wishes to appeal against a decision in the Director’s notice of decision must file with the Board a notice of appeal within 14 days after notice of the decision is given to him unless late filing of the notice is allowed by the Board under section 37ZT(3). There are provisions under the Ordinance governing the late filing and appeal procedures. As the Notice was issued on 1 November 2021, the time for lodging an appeal to the Board expired on 15 November 2021.
6. As the decision of the Director in the 2021 Notice is not susceptible to judicial review and the alleged Decision of the Board does not in fact exist, the application for leave to apply for judicial review of these decisions must be dismissed.
7. As the position now stands, the Applicant may apply to the Board for late filing of notice of appeal. If the application is allowed, he may proceed with his appeal to the Board. If the subsequent appeal is dismissed or if the late filing is disallowed, he may seek judicial review of that decision of the Board.
Dated 16th day of February 2022.
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( Allen LEE ) |
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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 his solicitors must:
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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)). |
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Sent to the Applicant
on 16/2/2022
Hoang Trong Giang
Applicant’s ref. no:
Nil. |
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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 16/2/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1stPutative Respondent’s ref. no.:
Nil
Director of Immigration
2ndPutative Respondent’s ref. no.: QA T/C 2509/16 (Formerly RBCZ 3000589/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1][1] [2018] HKCA 549
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