Case Detail

HOANG TRONG GIANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

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[2022] HKCFI 2346-EN-2022-08-05

RE HOANG TRONG GIANG

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HCAL 1648/2021

[2022] HKCFI 2346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1648 OF 2021

____________

RE:

HOANG TRONG GIANG

Applicant

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

5 August 2022

______________

D E C I S I O N

______________

Introduction

1. This is the Applicant’s application by summons filed on 11 May 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 16 February 2022 (the “Order”) refusing to grant his leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”) dated 1 November 2021 (the “leave application”).

2. By 11 May 2022 when the Summons was filed, 84 days had lapsed since the date of the Order. This application is 70 days out of time, which is very substantial in the context of a fourteen-day appeal period. His explanation for the delay is that he had contracted Covid-19 virus and was granted 7 days’ sick leave including two days of hospitalization. Then he engaged himself in self-isolation because he had been in contact with many confirmed Covid-19 patients. This Court does not accept his explanation as credible. In addition, despite the Court’s direction, he failed to furnish his grounds of the intended appeal.

3. In his leave application, he named the proposed respondent as “Immigration Department Torture Claim Appeal Board” and identified the decision in respect of which leave to apply for judicial review was sought as a decision dated 1 November 2021, which this Court understood as referring to a decision of the Board dated 1 November 2021. Upon the Board’s confirmation that no such decision had been made relating to the Applicant, this Court dismissed his leave application on the ground that the decision sought to be reviewed does not exist.

4. It now transpires that his leave application may be referable to the Notice of Decision of the Director of Immigration refusing his request to make a subsequent claim. As this Court has not considered his application as such, he may have an arguable appeal against this Court’s Order. Thus, despite his delay and failure to furnish his grounds of the intended appeal, extension of time is granted for him to file his notice of appeal within fourteen days from the date of this decision with a recommendation that his appeal be allowed and his leave application be remitted to this Court for determination.

	( Anthony To )
	Deputy High Court Judge

The applicant is not represented

HCAL 1648/2021

[2022] HKCFI 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1648 of 2021

BETWEEN
	Hoang Trong Giang	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 November 2021 (the “2021 Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 1 November 2021 (the “Decision”). The application was dated 17 November 2021 but filed on 3 December 2021 together with a supporting affirmation.

2. Enquiries with the Director revealed that the Director issued a notice of decision on 17 November 2016 (the “2016 Notice”) rejecting the Applicant’s non-refoulement claim lodged on 6 March 2014 (the “2014 Claim”). The Applicant was then repatriated back to Vietnam on 6 February 2018. He then re-entered Hong Kong illegally. He was arrested by the police on 19 September 2021. He claimed to have entered Hong Kong illegally on 1 June 2021. On 27 September 2021, he lodged a second non-refoulement claim (the “2021 Claim”). The 2021 Claim was rejected by the Director in his 2021 Notice.

3. Enquiries with the Board revealed that there is no record of any person bearing the name of the Applicant having filed any appeal/petition against non-refoulement claim decision with the Board. As a matter of procedure, the Board hears appeals against decision of the Director in the Notice. Common sense dictates that it is impossible for the Board to have heard the appeal against the Director’s decision in the Notice and made its decision on the very date that Notice was issued. The alleged Decision dated 1 November 2021 does not exist.

4. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board. If the Applicant is not satisfied with the decision of the Director in the Notice, he should have invoked those procedures; but he has not. Had he done so, the Board would have issued a decision which would have superseded the Director’s decisions in the 2021 Notice. Hence, the Director’s decision in his notice of decision is not susceptible to judicial review: Re Moshsin Ali[1]. It would be an abuse of process by by-passing the Board to seek judicial review of the decision of the Director in the 2021 Notice.

5. Under section 37ZS of the Immigration Ordinance, a person who wishes to appeal against a decision in the Director’s notice of decision must file with the Board a notice of appeal within 14 days after notice of the decision is given to him unless late filing of the notice is allowed by the Board under section 37ZT(3). There are provisions under the Ordinance governing the late filing and appeal procedures. As the Notice was issued on 1 November 2021, the time for lodging an appeal to the Board expired on 15 November 2021.

6. As the decision of the Director in the 2021 Notice is not susceptible to judicial review and the alleged Decision of the Board does not in fact exist, the application for leave to apply for judicial review of these decisions must be dismissed.

7. As the position now stands, the Applicant may apply to the Board for late filing of notice of appeal. If the application is allowed, he may proceed with his appeal to the Board. If the subsequent appeal is dismissed or if the late filing is disallowed, he may seek judicial review of that decision of the Board.

Dated 16^th day of February 2022.

	( Allen LEE )
	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 his 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 16/2/2022 Hoang Trong Giang 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 16/2/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1^stPutative Respondent’s ref. no.: Nil Director of Immigration 2^ndPutative Respondent’s ref. no.: QA T/C 2509/16 (Formerly RBCZ 3000589/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1][1] [2018] HKCA 549

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;