Dangaran, Meynard Gaspar v. Torture Claims Appeal Board

HCAL 323/2020

[2025] HKCFI 2959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 323 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;

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 and filed on 6 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 16 September 2019.

2.In the applicant’s supporting affirmation dated 6 March 2020, the applicant stated that he would like to reject and review the decision of the Board dated 24 January 2020.  Thus, there were two dates of the Board’s decision given by the applicant.

3.As the Board made only one decision dated 11 March 2022 (“the Board's Decision”) concerning the applicant’s claim for non-refoulement protection, the Leave Application was hence made before the Board’s Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000323_2020_files/the_Board's_Decision.pdf

4.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 9 January 2020 (“the Director’s Decision”).

Amendments

5.In both Form 86 and his supporting affirmation, the applicant stated clearly that the Leave Application was in respect of a decision of the Board although he gave two different dates for the Board’s decision.  Thus, only the Board should be the putative respondent and the Director should be the putative interested party.

6.However, the applicant named both the Board and the Immigration Department as the putative respondents and the putative interested parties in Form 86. 

7.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The decision in respect of which the relief is sought

8.At the oral hearing of the Leave Application on 24 April 2025, this court tried to clarify with the applicant in respect of which decision of the Board that he would like to seek relief in the Leave Application.  However, the applicant was not sure which decision it was.

9.The applicant could not produce any decision of the Board dated 16 September 2019 or 24 January 2020.  He could only produce the Director’s Decision to this court.

10.When this court told the applicant that there was only one decision of the Board made on 11 March 2022 (ie the Board’s Decision), the applicant replied that it was in respect of the Board’s Decision that he wanted to apply for judicial review.

11.However, this could not be the case. When the applicant made the Leave Application on 6 March 2020, the Board’s Decision was not even in existence.  The applicant was only referring to a decision of the Board made either on 16 September 2019 or 24 January 2020 in the Leave Application, and the Board’s Decision came out over 2 years later.

12.In his supporting affirmation, the applicant exhibited a copy of the Director’s Decision without its first page, but the first page of the Board’s letter dated 17 January 2020 was inserted instead.  The Board’s letter dated 17 January 2020 was just to acknowledge receipt of the applicant’s Notice of Appeal/Petition, which was filed on 17 January 2020 in respect of the applicant’s appeal/petition against the Director’s Decision.

13.The applicant was informed about the Board’s Decision in respect of his appeal/petition by the Board’s letter dated 11 March 2022 enclosing the Board’s Decision.  There was no way that the applicant could be aware of the Board’s Decision when he filed the Leave Application on 6 March 2020.

14.Hence, this court cannot accept that the applicant was referring to the Board’s Decision when the Leave Application was filed.

15.It was not a case that the applicant had made a mistake about the date of the decision.  The applicant was simply making the Leave Application in respect of a non-existent decision of the Board.

Discussion

16.Since there was no such decision of the Board dated 16 September 2019 or 24 January 2020, there was no subject matter for the applicant to seek for relief in the intended judicial review. 

17.It is not right to allow the applicant to amend the date of the decision to that of the Board’s Decision, because it was not a mistake about the date of the decision.  When the Board’s Decision was not even in existence at the time of the Leave Application, the applicant simply did not have any cause of action to commence the Leave Application.

18.It is also not right to treat the Leave Application as if it were made in respect of the Director’s Decision.  Only the Board’s Decision is reviewable by judicial process but not the Director’s Decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

19.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. 

20.The applicant has clearly no reasonably arguable case in respect of a non-existent decision and hence the Leave Application must be dismissed.

Conclusion

21.For reasons aforesaid, the Leave Application is dismissed.

Dated the 15^thday of July 2025

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