TO THI CHAU v. TORTURE CLAIMS APPEAL BOARD

CACV 135/2024, [2025] HKCA 77

On appeal from [2024] HKCFI 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2024

(ON APPEAL FROM HCAL NOS 1799 OF 2019 AND 1740 OF 2020 (CONSOLIDATED))

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CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1799 OF 2019

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1740 OF 2020

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(Consolidated pursuant to the Order of Deputy High Court Judge Bruno Chan dated 3 April 2024)

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J U D G M E N T

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The application – leave to amend Notice of Appeal

1.  The applicants filed a Notice of Appeal on 10 April 2024 to appeal from the judgment of Deputy High Court Judge Bruno Chan dated 3 April 2024 ([2024] HKCFI 963), by which the judge refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims.

2.  The 3^rd applicant is now 6 years old and is the daughter of the 1^st applicant. She was issued a Legal Aid Certificate on 19 September 2024 and has subsequently been legally represented in these proceedings.

3.  By a summons filed on 28 October 2024, the 3^rd applicant applies for leave to amend the Notice of Appeal. The 1^st applicant filed an affirmation in support of the present application of the 3^rd applicant.

4.  The Board indicated that they take a neutral stance in these proceedings while the Director of Immigration has not responded despite the court’s directions on 30 October 2024 requiring that he should write to the court to indicate his stance within 14 days.

Analysis and disposition

5.  Order 59 rule 7 of the Rules of the High Court (Cap 4A) gives the Court of Appeal power to allow amendments of the notice of appeal and the discretion of the court is untrammelled (See: Ng Yuk Pui Kelly v Dung Wai Man and Others [2021] HKCA 134).

6.  Pursuant to Order 59 rule 14A of the Rules of the High Court, the Court of Appeal (including a single judge thereof) may, in relation to a cause or matter pending before the Court of Appeal, determine an interlocutory application without a hearing on the basis of written submissions only. There are no exceptional circumstances in this case which makes it necessary to depart from the usual practice of this court to deal with applications for amendment of notice of appeal on paper without any oral hearing. Therefore, I decide to deal with this application on paper.

7.  In the present application, the 3^rd applicant seeks to replace the original grounds of appeal with a new ground contending that the judge misapplied Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office [2020] HKCA 971 and/or erred in failing to identify the minor-specific risk which is pertinent to her.

8.  In this case, the 3^rd applicant is a minor who only got legal representation after the filing of the Notice of Appeal. The lower court has considered the legal principles laid down in Fabio. Moreover, no party to these proceedings has raised any objections to the present application. Under these circumstances, it is appropriate and fair to allow the 3^rd applicant to amend the Notice of Appeal in the manner as shown in the draft annexed to her summons (save that the last sentence under paragraph 11 of the draft, namely “leave to appeal should be granted”, should be deleted as leave is not required for the 3^rd applicant to appeal from the judgment of Court of First Instance refusing leave to seek judicial review pursuant to Order 53 rule 3(4) of the Rules of the High Court).

9.  I make an order in the following terms:

(1)  Leave be to the 3^rd applicant to amend the Notice of Appeal filed on 10 April 2024 in the manner as shown in the draft amended notice of appeal annexed to her summons filed on 28 October 2024 (save that the sentence “leave to appeal should be granted” under paragraph 11 thereof be deleted);

(2)  The 3^rd applicant do file and serve the amended Notice of Appeal within 14 days from the date hereof; and

(3)  Costs of this application be in the cause of the appeal.