Vu Chi Huong v. Torture Claims Appeal Board and Another

Case No.HCAL 660/2018[2021] HKCFI 656

Court

High Court CFI

Date12 Mar 2021

Judge—

Case Document

100%Judiciary

HCAL 660/2018

[2021] HKCFI 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 660 of 2018

BETWEEN

	Vu Chi Huong	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

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

Following:

consideration of the documents only; or

consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Vietnam who had since 2013 repeatedly entered Hong Kong illegally with each occasion ended with an arrest and repatriation back to Vietnam, but on the last occasion when he was arrested by police on 25 August 2017 for being involved in an assault and wounding case, it was discovered that he had again entered Hong Kong illegally, and after he was released on recognizance pending further investigation, he on 17 April 2018 filed a Form 86 to institute these proceedings for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“the Board”) in rejecting his case, and in his supporting affirmation of the same date, he stated as follows:

“In Vietnam I’m have problem from Mafia, now if I go back Vietnam, go back Vietnam, Mafia will kill me. My house, Mafia also take. Now I have no change can go back my country. And then my Torture Claim Appeal Board is reject so that I need Judicial Review my case.”.

2.However, according to information provided by the Immigration Department, the Applicant had not at that time raised any torture claim or non-refoulement claim until more than one year later on 11 July 2019 when he submitted a written signification to the Immigration Department of his intention to seek non-refoulement protection, and for which he only completed a Non-refoulement Claim Form (“NCF”) on 17 September 2019 which triggered off the two-tiers screening process of his claim under the Unified Screening Mechanism (“USM”), and which was rejected by the Director of Immigration (“the Director”) by his decision dated 31 October 2019.

3.While the Applicant did lodge an appeal to the Board, it was not until another year later on 12 November 2020 when it was dismissed by the Board, hence at the time when the Applicant filed his Form 86 on 17 April 2018, there was simply no decision by the Board for him to apply for judicial review.

4.According to the Director’s decision regarding the Applicant’s immigration history ([7] – [9]), there does not appear to be any outstanding issues either regarding any of his non-refoulement claims raised in any of his previous trips to Hong Kong which may cause him to file this Form 86, and for making an application for leave to apply for judicial review, Order 53 rule 4(1) of the High Court Ordinance, Cap 4A provides as follows:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

5.Henceforth, at the time when the Applicant filed his Form 86 on 17 April 2018, there was simply no ground for him to make his application, as there was not yet any decision by the Board for him to apply for judicial review, as he had then not yet raised any non-refoulement claim to the Immigration Department.

6.Nor did he subsequently respond either in writing or appear at the hearing of his application to explain why he had sought to apply for judicial review of a decision which the Board had not yet made at the time when he made his application. As such and in the premises, the Applicant had no ground to make any application for judicial review of any Board’s decision at the time when he filed his Form 86, and I therefore dismiss his leave application.

Dated the 12^th day of March 2021.

	(TAM Kam-man)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12^th March 2021 Vu Chi Huong Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12^th March 2021 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 16550/19/12/16/V2400 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 790/19 (Formerly RBCZ 10519/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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