PHU THI YEN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2265/2020

[2025] HKCFI 3461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2265 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 4 November 2020 and filed on 16 November 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 22 August 2020.

2.  From what the applicant stated in Form 86, it seems that the applicant was referring to a decision of the Torture Claims Appeal Board (“the Board”). However, in the applicant’s supporting affirmation dated 16 November 2020, the applicant was saying that her application for judicial review was made against the Director of Immigration (“the Director”). The applicant also named both the Board and the Director as the putative respondents.

3.  Neither the Board nor the Director made any decision in respect of the applicant’s non-refoulement claims on 22 August 2020.

4.  The Director made his first decision on 10 April 2017 (“the Director’s 1^st Decision”). The applicant lodged a Notice of Appeal/Petition against the Director’s 1^st Decision on 21 April 2017.

5.  However, the applicant applied to withdraw the appeal/petition by her letter dated 6 December 2017. By its letter dated 12 December 2017, the Board directed that the applicant’s appeal/petition was withdrawn and the Director’s 1^st Decision was confirmed.

6.  The applicant was subsequently repatriated to Vietnam on 18 December 2017.

7.  On 20 December 2019, the applicant was arrested by the Hong Kong police for theft and remaining in Hong Kong without the authority of the Director after illegal entry.

8.  On 23 December 2019, she was sentenced to 2 weeks’ imprisonment for theft. When she was serving sentence, she filed another non-refoulement claim by written representation on 28 December 2019.

9.  The Director rejected her non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 6 July 2020 (“the Director’s 2^nd Decision’). The applicant lodged a Notice of Appeal/Petition against the Director’s 2^nd Decision on 11 July 2020.

10.  The Board held an oral hearing in relation to the applicant’s appeal/petition on 26 March 2021 but the applicant was absent. The Board then gave its decision in respect of the applicant’s appeal/petition on 31 May 2021 (“the Board’s Decision”), which dismissed the applicant’s appeal/petition against the Director’s 2^nd Decision.

11.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002265_2020_files/the_Board's_Decision.pdf

12.  As the Board’s Decision was made more than 6 months after the filing of the Form 86 of the Leave Application, it cannot be the decision in respect of which relief is sought.

13.  As the Director’s 2^nd Decision was superseded by the Board’s Decision (see Re Moshsin Ali, [2018] HKCA 549), it cannot be the decision in respect of which relief is sought either.

14.  Thus, it is not clear which decision can be regarded as the decision in respect of which relief is sought in the Leave Application.

Withdrawal of the Leave Application

15.  By way of a letter dated 30 October 2024, the Director notified this court that the applicant wrote a letter dated 25 October 2024 to withdraw her judicial review application. In the applicant’s said letter, the applicant stated that:-

“I want to withdraw my judicial review application under reference HCAL 2265/2020. Please withdraw all my cases in Hong Kong as I want to go back to Vietnam as soon as possible. My problem in my home country is solved and it is safe for me to go back home.”

16.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

17.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“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.”

18.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

19.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicant did not provide any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 16 November 2020.

Discussion

21.  As mentioned above, it is not clear in respect of which decision the applicant is seeking leave for judicial review in the Leave Application. There was no decision dated 22 August 2020. The Board’s Decision was not in existence when the Leave Application was filed. The Director’s 2^nd Decision was superseded by the Board’s Decision and cannot be judicially reviewed now.

22.  The applicant simply cannot have leave to apply for judicial review in respect of a decision which cannot be properly identified.

23.  Moreover, the applicant has already confirmed in her letter dated 25 October 2024 that it is safe for her to go back home. Thus, there is no prospect for her non-refoulement claim to be substantiated at all.

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

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