Case Document

100%Judiciary

HCAL 1201/2023

[2023] HKCFI 2787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1201 of 2023

BETWEEN
	Le Chi Dung	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 18 July 2023 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 December 2021 (the “Notice”).

2.The Court’s enquiries revealed that the Applicant had lodged an appeal against the Notice to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) on 22 December 2021. Then, on 26 May 2022, he lodged a handwritten letter in English to the Board seeking to withdraw the appeal. He stated in the letter that “[i]t is now safe for [him] to return to [his] country” and he wished to withdraw the appeal. He confirmed that he was withdrawing the appeal out of his “own free will” and that he understood that the consequences of his withdrawal includes:

(i)    that he is “bringing the appeal to an end even though the merits of which have not been determined”;

(ii)   “no further action shall be taken in relation to the appeal”; and

(iii)  “the decision that [he has] appealed/petitioned against shall remain in force”.

3.Having considered his letter, the Board was satisfied that his application to withdraw the appeal/petition was freely sought; that he understood the consequences of the withdrawal; and that there is good reason for his proposed withdrawal. It then gave direction that his appeal/ petition be withdrawn and that the Director’s decision appealed/petitioned against (ie the Notice) remains. The Board’s direction was conveyed to the Applicant by a letter dated 27 May 2022 from secretariat of the Board. The consequence of the withdrawal is as if the appeal has never been filed. The decision in the Notice remains valid.

Discussion and conclusion

4.The Applicant is now seeking leave to judicially review the Director’s decision in the Notice. He explained that in April 2023 while he was in prison custody, he was informed by his family that his mother fell sick used up all the money to be used to pay his creditor; hence the creditor renewed the threat to kill him. Basically, he is repeating his case which had been considered by the Director.

5.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board: see Sections 37ZR to 37ZU of the Immigration Ordinance. The Applicant was aware of those procedures and invoked them, though he subsequently withdrew his appeal. The Director’s decision is not susceptible to judicial review: Re Moshsin Ali[1]. Even if what the Applicant said at this hearing is true, it does not give this Court jurisdiction to review the decision of the Director. The Applicant’s application for leave to apply for judicial review of the Director’s decision in the Notice is therefore dismissed.

6.As the matter now stands, the decision in the Notice remains valid. On the other hand, the fourteen-day statutory time limit to appeal the Notice has long past by almost two years. In view of the procedural background, there is no prospect that his late filing of another appeal will be entertained.

7.The contents of this Form CALL-1 had been explained to the Applicant at the hearing.

Dated 26^th day of October 2023.

	( Allen LEE )
	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 26/10/2023 Le Chi Dung 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 26/10/2023 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19541/21/12/189/V3321 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2004/21 (Formerly RBCZ 10989/21) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] [2018] HKCA 549

Cites 1 case

Cases cited in this judgment

Cited by 1 case

Other judgments that cite this case

Le Chi Dung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Court of Appeal18 Jun 2024