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
:
1.
Extension of time to apply for leave for Judicial Review be refused;
2.
The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1.
This is the Applicant’s application by Form 86 filed on 17 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 6 August 2021.
2.
In his supporting affirmation, the Applicant annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 August 2021(the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 30 March 2021 (the “Notice”). The Board had made a decision dated 6 August 2021 relating to the Applicant, but the Director had not. Under such factual matrix, it is obvious that the Applicant’s intention was to seek a review of a decision dated 6 August 2021 made in relation to his non-refoulement claim but was mistaken about the identity of the decision maker. His real intention was to seek judicial review of the Decision of the Board dated 6 August 2021 and not the decision of the Director of Immigration.
3.
If this leave application is to proceed as the Applicant pleaded, it has to be dismiss for want of subject matter. To give effect to his real intention, the leave application has to be amended by making the Board the proposed putative respondent and its Decision as the subject matter of the proposed judicial review. For reasons as stated below, the leave application even if so amended would be badly out of time and in any event lacking in merits. The proper course would be to simply refuse him extension of time to apply and to dismiss his leave application.
The Applicant’s case and the Board’s Decision
4.
The Applicant is a Vietnamese, now aged 35. He had 12 years of education and had worked as an air defense soldier, photographer and an entrepreneur trading used vehicles. He entered Hong Kong illegally on 24 May 2020. He was arrested on the next day. On 1 June 2020, he raised a non-refoulement claim. He claimed that he had borrowed 1.5 billion Vietnamese Dong from a moneylender to contribute in a business with his friend trading in used cars. He could not repay. He was assaulted and threatened by the moneylender. In March 2020, he sold his flat to partly repay his moneylender. But he could not repay the balance. He divorce
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