VU VAN LAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2225 of 2023

[2025] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2225 OF 2023

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BETWEEN

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D E C I S I O N

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1.  The applicant had applied for withdrawal of the application for judicial review of the Board’s Decision.

2.  The Court acceded to the applicant’s request and dismisses the application accordingly^[1] on 5 September 2024.

3.  By summons dated 22 January 2025, the applicant applied to extend time to appeal the Court’s decision. Since it was his application to withdraw his application, he has no reason to appeal against the Court’s decision. In effect, he is applying for re-opening his application for leave for judicial review of the Board’s Decision.

4.  The Court retains jurisdiction over the withdrawn action under Order 21 rule 3(1). If the court has not made a condition that the applicant cannot make a subsequent claim or reinstate the action, the applicant may make an application to the court for reinstating the withdrawn action. Re Muhammad Jamil [2024] HKCFI 1647, the court held,

“3. Discontinuance of action, etc., with leave (O. 21, r. 3)

(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counter-claim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”

The provision of “on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just” provides power for the court to deal with the withdrawn action, especially with regard to the conditions imposed.’

5.  The Court of Appeal in Re Cu Van Duc [2024] HKCA 641, Hon Chu VP and Au JA, 30 July 2024 held that Order 32 rule 6 of the Rules of the High Court provides that the Court may set aside an order made ex parte.

6.  However, the Court will not accede to the applicant’s request if the applicant has no valid reason in support of his application. The Court of Appeal 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…. ”

7.  The rationale on finality of the action above in relation to the Board equally applies to the present case. This Court has the duty to prevent abuse of its process.

8.  The applicant has not given any valid reason in support of his application.

9.  I refuse to accede to his request, and I dismiss his application.

[1]   Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”