DINH VAN DIEP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
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HCAL 1620/2021
[2026] HKCFI 1095
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1620 of 2021
BETWEEN | ||
| Dinh Van Diep | Applicant | |
| and | ||
| Torture Claims Appeal Board/ | Putative | |
| Non-refoulement Claims Petition Office | 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:
Application for Leave to apply for Judicial Review be struck out.
Observations for the Applicant:
THE APPLICATION
1. The applicant’s application for leave to apply for judicial review of the Director’s Decision dated 14 September 2021 (“the Director’s Decision”) is struck out for reasons below:
a. In Form 86, the applicant applied for leave for judicial review of the Director Decision.
b. He had not appealed to the Torture Claims Appeal Board against the Director’s Decision. There is no exceptional reason for it.
c. Section 37ZR of the Immigration Ordinance (“the Ordinance”) provides:
“A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—
(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);
(b) section 37ZI(1)(b) (decision rejecting a torture claim); or
(c) section 37ZL(1) (revocation decision made by an immigration officer).”
d. The applicant should have taken the Director Decision to the Torture Claims Appeal Board (“the Board”) before making judicial review application to the High Court. This is an abuse of the administrative structure of the judicial process, as held by the Court of Appeal in Re: Moshsin Ali[2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
“43. It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims. The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.
45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
2. Accordingly, this application is struck out.
Dated the 5th day of March 2026
| (Klein Tse) 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 5/3/2026 Dinh Van Diep 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 6/3/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: N/A Director of Immigration Putative Interested Party’s ref. no.: QA 197/18 (L) VRD 295/1/21 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
Form CALL-1