Case Detail

TRAN VAN TIEN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2022] HKCFI 1930-EN-2022-07-14

RE TRAN VAN TIEN AND OTHERS

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HCAL 1105/2019

[2022] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1105 OF 2019

_____________

Re:	Tran Van Tien	1^st Applicant
	Le Thi Thuy	2^nd Applicant
	Tran Thi Thuy Tam	3^rd Applicant
	Tran Thi Bao Ngan	4^th Applicant

_____________

Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 14 July 2022

_____________

D E C I S I O N

_____________

The application

1. The applicants are illegal immigrants by remaining without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected their joint application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered the evidence, the Board, by its Decision (the “Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. The applicants then filed an affirmation dated 11 November 2019 jointly applied to the Court to withdraw their joint application. They submitted that their problems in Vietnam had been solved and they wanted to return to Vietnam. They further confirmed that the Court may deal with their joint application on paper and their application be dismissed.

4. By Form CALL-1 dated 27 December 2019 (“the Court’s decision”), the Court acceded to their application and dismissed their joint application.

5. It may be because of pandemic COVID-19 virus spread in Hong Kong, the applicants were unable to return to Vietnam for the past two years.

6. The applicants filed a summons on 7 June 2022 for extension of time to appeal against the Court’s decision.

7. On behalf of himself and other applicants, the 1^st applicant filed an affirmation on 7 June 2022 in which he simply repeated the reasons why the family came to Hong Kong.

Discussion

8. Pursuant to Order 32, rule 11 and 11A of the RHC[1], having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

9. Since the Court’s decision of dismissing their application is based upon their voluntary decision to withdraw their joint application, there is no valid ground from the applicants to say that the Court had committed any error in the Court’s decision.

10. There is no realistic prospect of success in their intended appeal. I therefore refuse to extend time for them to appeal and I dismiss their application.

	(K. W. Lung)
	Deputy High Court Judge

The applicants were unrepresented.

[1] 11. Jurisdiction of the Registrar and masters (O. 32, r. 11)

(1) The Registrar and any master shall have power to transact all such business and exercise all such authority and jurisdiction as under any Ordinance or by these rules may be transacted and exercised by a judge in chambers except in respect of the following matters and proceedings, that is to say…”
11A. Interlocutory applications (O. 32, r. 11A)
A master may—
(a) determine an interlocutory application without an oral hearing; or
(b) adjourn the application to be heard before him or another master or a judge in chambers.

HCAL 1105/2019

[2019] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1105 of 2019

BETWEEN

	Tran Van Tien	1^st Applicant
	Le Thi Thuy	2^nd Applicant
	Tran Thi Thuy Tam	3^rd Applicant
	Tran Thi Bao Ngan	4^th 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 oral submission by the Applicant in open court;

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

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

THE APPLICATION

1. This is the applicants’ joint application for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replacing it with the Director as interested party.

The applicants

3. The applicants are Vietnamese nationals. The first applicant is the father of the third and the fourth applicants. The second applicant was a partner of a café business with the first applicant. This is their joint application as they rely upon the same set of facts.

4. The applicants are illegal immigrants and they lodged non-refoulement claims with the Director of Immigration (“the Director”).

The Director’s Decision

5. The Director considered their applications by reference to the Torture risk under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture risk”); Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”); 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 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 under RC”).

6. The Director rejected their claims.

The Board’s Decision

7. The applicants appealed to the Board against the Director’s Decision. The Board refused their appeal.

Application for leave to apply for judicial review

8. The applicants filed Form 86 dated 24 September 2019 for leave to apply for judicial review of the Board’s Decision.

Application for withdrawing his application

9. By an affirmation dated 11 November 2019, the applicants jointly applied to the Court to withdraw their joint application. They submitted that their problems in Vietnam had been solved and they wanted to return to Vietnam.

10. The Court advised them that they had to confirm in writing that they agree that the Court would deal their joint application on paper and their application be dismissed.

11. By another letter dated 24 November 2019, they confirmed that they agreed that their joint application be dealt with on paper and that the court might dismiss their joint application.

CONCLUSION

12. Accordingly, I dismiss their joint application.

Dated the 27^th day of December 2019

	(Mike Mak)
	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

Notesfor 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 27/12/2019 Tran Van Tien (the 1^st Applicant) Le Thi Thuy (the 2^nd Applicant) Tran Thi Thuy Tam (the 3^rd Applicant) Tran Thi Bao Ngan (the 4^th Applicant) 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 27/12/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM6056/17/2/55/V923; USM6057/17/2/56/V924; USM6058/17/2/57/V925; USM6059/17/2/58/V926; Director of Immigration Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1