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

Case No.HCAL 1143/2025[2025] HKCFI 5784

Court

High Court CFI

Date02 Dec 2025

Judge—

Case Document

100%Judiciary

HCAL 1143/2025

[2025] HKCFI 5784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1143 of 2025

BETWEEN
	Nguyen Van Tuan	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:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant was an illegal immigrant and had made non-refoulement claim to the Director of Immigration (“the Director”). By the Director’s Decision dated 10 February 2025 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.[1]

2.The applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)

3.Before the Board dealt with the appeal, the applicant submitted a Notice of Withdraw dated 31 March 2025 indicating that he wished to withdraw his appeal.

4.By letter dated 2 April 2025 (“the Board’s Decision”), the Board advised the applicant that the Board had received his Notice of Withdraw and no further action will be taken by the Board in respect of his appeal.

5.The applicant filed Form 86 on 19 May 2025 to apply for leave to apply for judicial review of the Board’s Decision. He did not ask for a hearing.

6.The applicant has no dispute to the facts above. He has submitted a statement of grounds in support of his application. Those grounds relate to his comments that the Board’s Decision was wrongly made and other procedural irregularities of the Board’s hearing, which are not relevant to this application. They are not valid to challenge the Board’s Decision.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

DISCUSSION

8.It is apparent that the Board’s Decision is correct under the law below.

9.Section ZTA of the Ordinance provides:

“(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

10.The Court of Appeal in In Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

CONCLUSION

11.For the above reasons, I dismiss the applicant’s application.

Dated the 2^nd day of December 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 2/12/2025 Nguyen Van Tuan 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 2/12/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 25636 Director of Immigration Putative Interested Party’s ref. no.: INCL-0002834-24 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”)

Cites 1 case

Cases cited in this judgment