LE VAN TAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2997/2019

[2025] HKCFI 3267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2997 OF 2019

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D E C I S I O N

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Introduction

1.  There are one summons and one application by letter before the Court taken out by the Applicant.  The Applicant is a non-refoulement claimant, whose claim for non-refuolement protection had been refused by the Director of Immigration and whose appeal against the Director’s decision had been dismissed by the Torture Claims Appeal Board / Non-refoulement Petition Office (the “Board”).  His application for leave to apply for judicial review of the Board’s decision (the “leave application”) had also been refused by the order this Court dated 8 May 2025 (the “Order”).  

2.  By his summons filed on 2 June 2025, the Applicant sought extension of time to appeal this Court’s Order.  On 10 June 2025, this Court gave him directions by letter to furnish the grounds of his intended appeal.  This started a course of hide and seek between him and the Court.  The directions were posted to him at this address care of Castle Peak Bay Immigration Centre (“CIC”) as stated by him in his summons.  He did not respond.  The letter was returned from CIC marked “already left”.  Upon enquiries with the Immigration Department, the Court obtained his then address in Apliu Street on 27 June 2025.  On 30 June 2025, the directions were re-sent to him to his address in Apliu Street.  Again, he did not respond.  On 7 July 2025, the Immigration Department informed the Court that the Applicant was then detained at Tai Tam Gap Correctional Institution.   Then, on 8 July 2025, the Court received the Applicant’s letter via the Immigration Department applying to withdraw his leave application.  During the course of these events, the Applicant never informed the Court of his moves and changes of address.  And lastly, just before the previous version of this Decision was issued, the Immigration Department informed this Court its letter dated 22 July 2025 that the Applicant had been repatriated.

3.  The facts now before the Court are: (1) this Court’s Order refusing his leave application; (2) the Applicant’s application for extension of time to appeal that Order; (3) the Applicant’s changes of his address without informing the Court; and (4) his application by letter to withdraw his leave application.  There are two matters before the Court, namely the application for extension of time to appeal and the application to withdraw the leave application.

4.  It would be convenient to deal with his application to withdraw his leave application.  His leave application had already been determined.  This Court has no jurisdiction to re-open it and allow it to be withdrawn as if it had never been made.  Also his application could not be taken as an application to withdraw the application for extension of time to appeal, as that or the summons is plainly not the subject matter of that letter.

5.  His application for extension of time was not properly made in that he did not advance any explanation for the delay and did not furnish any grounds of his intended appeal which are required to support an application for extension of time.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The Applicant was ten days out of time, a delay which the Court would readily condone if he could furnish grounds of appeal with prospect of success. Hence, this Court gave him directions to furnish his grounds of appeal to enable the Court to assess the prospect of success which is an essential requirement which the Applicant has to fulfil if the Court were to exercise its discretion to grant him extension of time.  As the Applicant moved from one address to another, albeit involuntarily, it was his fault that the directions could not reach him.  Ultimately, on 8 July 2025, he abandoned his intended appeal by seeking to withdraw his leave application.  From his failure to inform the Court of his changes of address and his final decision as expressed in his letter dated 8 July 2025 to withdraw his leave application, the Court drew the inference that he had no intention to prosecute his appeal. 

6.  For the above reasons, both the summons for extension of time to appeal the Order of this Court and the application by letter to withdraw his leave application are refused.