Nguyen Van Hung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1100/2019

[2022] HKCFI 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1100 of 2019

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

1.      Extension of time for the application for leave to apply for Judicial Review be granted; and

2.      Leave to apply for Judicial Review be granted.

Observations for the Applicant:

The application

1.This is an application for leave to apply for judicial review of the Decision dated 18 September 2018 by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board’s Decision”), which refused to carry on the applicant’s appeal against the Decision of the Director of Immigration dated 28 June 2017 (the Director’s Decision”) rejecting the joint application of the applicant and his mother for non-refoulement. This application filed on 24 April 2019 is late for about 4 months. I shall deal with this issue below.

2.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.

3.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

4.The applicant is an illegal immigrant. He is the son of BUI Thi Lot, the 1^st applicant (“the mother”) in their joint non-refoulement claim with the Director of Immigration (the “Director”) by written representations respectively dated 5 March 2014 and 12 August 2015. By the Director’s Decision, the Director rejected their joint application. They appealed to the Board.

Application for withdrawal

5.The mother applied to the Board to withdraw the appeal. Since this was a joint application, the mother’s application for withdrawal was treated as a joint application to withdraw.

6.By letter dated 10 September 2018, the Board wrote to the mother, confirming that she applied to withdraw her appeal application. The Board quoted the mother’s written submission as:

“我想返回越南。我在越南的問題已得到解決，可以安全返回越南，現我向入境處提出撤銷免遣返申請及其他申請 … 并撤銷我在香港的所有免遣返申請及上訴。”

7.The Board further said that unless she advised it otherwise, it would assume that she made her decision, knowing the consequences and that her son would also make the same application for withdrawal as his case depended on hers.

8.The mother did not reply to the Board’s letter.

9.By the Board’s Decision, the Board notified both the mother and the applicant that it had considered their application and assumed that they had made their application voluntarily and they knew the consequences of their application. As such, the Board gave direction that their appeal was withdrawn. It had also confirmed the immigration officer’s decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the applicant’s affirmation in support of his application, he submitted that at that time, it was his mother who had applied for withdrawal of her appeal. He was not aware of his mother’s application. His mother had returned to Vietnam. However, he did not have the intention of withdrawing his appeal himself as he believed it was still not safe for him to return to Vietnam. He had instructed his solicitor to ask the Board to revive his appeal. The Board turned down his request. Therefore, he asked this Court to deal with his problem.

Discussion

12.The joint application for non-refoulement claim was made by the applicant’s mother jointly with the applicant because at the time of the application on 5 March 2014 and 12 August 2015, the applicant was aged 17, his birthday being on 7 February 1997. He was then a minor.

13.From the Director’s Decision, the mother said that she left Vietnam because she was harmed by the creditors. She was also threatened with death. She left Vietnam in 2012, leaving the applicant behind. The creditors pressed the applicant for his mother’s whereabouts. They also threatened to kill him if his mother did not repay her debt. They had beaten him up with wooden sticks and leather straps for a number of times. The applicant had sustained head injuries. The applicant then left Vietnam on 3 August 2015.

14.It is therefore quite clear to the Board that the mother and the applicant had separate reasons in support of their applications. As the applicant was of age when the Board received the mother’s application for withdrawal, the applicant’s application should be severed and dealt with separately. The applicant’s mother’s application for withdrawal should not bind the applicant.

15.The Board considers that since it is a joint application, the mother’s withdrawal of the appeal will bind the applicant. This is the case for applications where the parent is the applicant and the child’s application stands and falls together with the mother’s case because the child does not have separate facts in support of his/her application. This is not the case for the applicant. He has his own facts for the Board’s consideration.

16.In my view, the Board has committed an error of law in its decision in this case. The applicant is not bound by his mother’s withdrawal. The joint applicant should be severed and the Board should also obtain confirmation from the applicant in relation to his mother’s application for withdrawal. The Board had failed to do so. The applicant is therefore not bound by the mother’s application for withdrawal. I consider the applicant has a realistic chance of success.

CONCLUSION

17.I shall extend time for the applicant to file Form 86 for his application. I shall grant leave to the applicant to apply for leave for judicial review of the Board’s Decision. The applicant shall take out the originating summons within 14 days after the grant of leave in accordance with Order 53 rule (5) of the RHC.

Dated the 13^th day of May 2022

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