Pham Xuan Thuy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 2350/2019[2025] HKCFI 361

Court

High Court CFI

Date11 Feb 2025

Judge—

Case Document

100%

HCAL 2350/2019

[2025] HKCFI 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2350 of 2019

BETWEEN
	Pham Xuan Thuy	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 documents only; or

consideration of documents and Applicant being absent in open court;

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

1.Leave for the applicant to apply for judicial review of the Board’s Decision dated 30 July 2019 be granted.

2.The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

3.A copy of this Order be served on the Director of Justice, who shall work out the proper directions for the judicial review hearing with the applicant.

4.Liberty to apply.

Observation for the Applicant:

5.This is the applicant’s application for leave for judicial review of the Board’s Decision dated 30 July 2019 (“the Board’s Decision”), which dismissed his appeal against the Director’s Decision refusing his application of re-opening his non-refoulement claim which was deemed to be withdrawn because he failed to submit the NCF to the immigration officer despite chances having been given to him. The Board’s reasons for dismissing the applicant’s appeal are that he was late for 8 months and the Board did not accept his explanation for the delay.

6.Leave is granted to the applicant to apply for judicial review of the Board’s Decision for the reason that the Board did not consider the merit of the case by finding the facts of the claim [see paragraph 9 of the Board’s Decision where the applicant had set out the facts in support of his claim], contrary to the decision of the Court of Appeal[1]. This is an error in law.

7.The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

8.A copy of this Order be served on the Director of Justice, who shall work out the proper directions for the judicial review hearing with the applicant.

9.Liberty to apply.

Dated the 11^th day of February 2025

	(M.O. WONG)(Ms)
	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 the Applicant’s 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 11/2/2025 Pham Xuan Thuy 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 11/2/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: 15927/19/5/67/V2291 Director of Immigration Putative Interested Party’s ref. no.: L/M (18600) in ImmD RA 7/37/C (formerly RBCZ 13217/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

Cites 1 case

Cases cited in this judgment

Re Khan Kamal Ahmed

[2019] HKCA 377 · Court of Appeal

02 Apr 2019

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