PATCHAKHIEO SIRINTRA v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1561/2022

[2022] HKCFI 3854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1561 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 filed on 22 December 2022, the Applicant seeks leave to apply for judicial review, presumably against one or both of decisions made against her by the Director of Immigration (“Director”) and/or the Immigration Tribunal (“Tribunal”).

2.  Having considered the materials available, I consider this application could be dealt with on paper. This is my Decision.

B.  Failure to Follow RHC Order 53 rule 3(2)

3.  Order 53 rule 3(2) of the Rules of the High Court requires an application for leave to apply for judicial review to be brought by filing a Form 86 which must contain a statement of the relief sought and the grounds on which it is sought. The Applicant has failed to identify either the grounds or the relief sought in the Form 86 (or the supporting affirmation). Failure to follow Order 53 rule 3(2) alone is sufficient to dismiss the present application, and being a litigant in person is no excuse for such failure: see Ho Ka Man (aka 清乾) v The Privacy Commissioner for Personal Data [2018] HKCFI 814, §11.

4.  Indeed, neither the description in the Form 86 nor the supporting affirmation clearly identify even the actual decision the subject of the intended challenge. The Form 86 identifies the following as the intended subject of judicial review:

To apply for the judicial review of the decision of an assistant director of immigration Ref: IT 27/22 (INCL 926/22) dated 18 Nov, 2022.

5.  Two documents are exhibited to the affirmation, referred to as Exhibit A and Exhibit B. Exhibit A is a letter dated 18 November 2022 issued by the Immigration Tribunal to the Applicant. There is printed on the top left corner of the letter ‘Ref: IT 27/22 (INCL 926/22)’. Hence, this letter appears to contain the decision identified as the subject of the intended challenge in the Form 86, but the decision maker was the Immigration Tribunal, rather than an assistant director of immigration.

6.  The 18 November 2022 letter is a ‘Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C’, as its heading identifies. The body of the letter reads:

[1] You have appealed to the Tribunal against the decision of an assistant director of immigration to make a removal order against you on the grounds that:

(as contained in your Notice of Appeal against Removal Order dated 27 October 2022)

2. The Tribunal has examined your written notice of appeal and is satisfied that the facts or matters on which you are seeking to rely are not matters which would entitle you to succeed in the appeal. Accordingly, the appeal has been dismissed without a hearing.

7.  Neither the Notice of Appeal nor the Removal Order referred to in the letter has been provided to the Court.

8.  Making the best out of the documents provided by the Applicant, it seems that an Assistant Director of Immigration (exercising the power of the Director) made a Removal Order against the Applicant. Then, by Notice of appeal, the Applicant appealed against the making of the Removal Order under section 53A of the Immigration Ordinance Cap 115 (“Ordinance”). From the letter (and because the Applicant has not provided any further information), it is not clear whether the Removal Order was dated 27 October 2022 or whether the Notice of Appeal was dated 27 October 2022. But it probably does not matter because, under the Ordinance, any appeal ought to be brought within 24 hours of the removal order under challenge.

9.  Section 53C enables the Tribunal to determine an appeal under section 53A, by dismissing the appeal without a hearing on two bases. One basis is that the facts or matters the appellant seeks to rely on would not entitle him or her to succeed in the appeal. As the 18 November 2022 letter states, the Applicant’s appeal against the Removal Order was dismissed by the Tribunal without a hearing on that basis, under section 53C.

10.  The reference to ‘assistant director of immigration’ and the identification of the Director as one of the putative respondents may suggest that the Applicant also intends to challenge the making of the Removal Order by the Director, alongside the Tribunal’s dismissal of the subsequent appeal on 18 November 2022.

11.  In any event, as already said, no grounds are identified in the Form 86 or the supporting affirmation against whatever decision the Applicant may intend to challenge. Nor could I find any potential grounds from the materials available to me.

12.  The only further information provided by the Applicant is the Exhibit B to the supporting affirmation which the Applicant only describes as ‘decision’.

13.  On its face, Exhibit B is unrelated to the Removal Order or the Tribunal’s decision. Exhibit B is a letter dated 28 October 2022, containing the Director’s rejection of the Applicant’s non-refoulement claim made on 28 July 2022 and 15 August 2022. This decision is not referenced in the Form 86 or the supporting affirmation in any way (except to be identified as an exhibit), still less identified as the subject of the intended challenge. Nor can I see how the Applicant’s non-refoulement claim is relevant to the making of the Removal Order against her or the Tribunal’s determination of the appeal.

C.  Conclusion

14.  The application for leave to apply for judicial review reveals no reasonably arguable ground and is therefore dismissed.

15.  I make no order as to costs.