NGUYEN VAN DIEN v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 895/2021

[2021] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 895 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 31 March 2021 (the “Board’s Decision”), by which the Board approved the applicant’s application for withdrawal of his appeal.

2.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). He said that if refouled, he would be harmed or killed by a loan shark because he had a loan dispute with him.  His claim was based on Torture risk under the Immigration Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. 

3.  The Director rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”).  However, by a letter dated 22 February 2021, he applied to withdraw his appeal on the reason that he considered it safe to return to his country.  I shall set out the full text of his letter below:

“I would like to present the following: I am currently under detention at Lai Chi Kok. It has been 8 months and eleven days. As of now, I am in my process of making appeal to Wan Chai, this process has been going on for 5 months, and still I have not heard any reply on my appeal. Thus, now I would like to withdraw my appeal, I would take any charges, because my wife and children are looking forward to seeing me go back and reunite with them. So, I don’t wish to follow my appeal anymore. Hopefully, departments and officials help me so I can plead guilty and serve to finish my term earlier, then I can return to Vietnam soon to unite with my family again. Finally, I sincerely wish the Director of Entry and Exit Department of the Special Administrative Region of Hong Kong helps me to see it through soon. I am very grateful for your help.”

4.  The Board, by letter dated 8 March 2021, advised the applicant to seek independent legal advice on the consequences of the proposed withdrawal of his application.  He did not reply.

5.  In the Board’s Decision, the Board assumed that he had good reason for his withdrawal application.  It further assumed that his decision was freely made and that he understood the consequences of his application.  It approved his application for withdrawal of his appeal.  It advised him that his appeal had been disposed of and finally determined by the Board and that no further action would be taken by the Board in respect of his appeal.

Application for leave to apply for judicial review of the Board’s Decision

6.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.  He is now being detained by the Immigration Department.

8.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

9.  In his affirmation in support of his application, he said that he did not agree with the Board’s Decision and that his life would be in danger if he returned to Vietnam.

Discussion

10.  The content of his affirmation is clearly inconsistent with his application for withdrawal of his appeal.  The applicant did not dispute that he had written a letter to withdraw his appeal.  Nor did he say that his letter was not valid for whatever reason.

11.  The question therefore turns on whether the Board’s Decision accepting his withdrawal application should be set aside on public law reasons.

12.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 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…. …”

13.  The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

14.  In the circumstances, I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

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

Form CALL-1