DINH TIEN HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 5/2022

[2026] HKCFI 2751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 5 of 2022

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;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be an extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

4.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 4 January 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 16 July 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 14 July 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1] . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000005_2022_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper putative respondent and the Director the putative interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim is that, if refouled to Vietnam, he would be harmed or killed by the former owner of the house for having refused to hand over the title deed of the house to him. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  The applicant has not requested for an oral hearing when he filed the Leave Application. In the circumstances, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 contained no such grounds. In his supporting affirmation, the applicant alleged that the Board’s Decision was unfair as the Board did not give him an opportunity to clarify his case and the situation in his country.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the applicant was absent from the hearing before the Board. After a notice was sent to the applicant pursuant to s.13 of Schedule 1A (“Sch 1A”) of the Immigration Ordinance, the Board received no response from the applicant. The Board therefore decided to determine the applicant’s appeal in his absence. The Board took the view that in the absence of any evidence from the applicant to support his written claim, it was unable to decide on the credibility of the applicant’s case. It therefore was unable to assess what risks the applicant would face if he were refouled. It therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Board failed to assess merits of the applicant’s claims

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that the Board appears to have failed to observe a high standard of fairness in dismissing the applicant’s claims without determining the merits.

9.  Under s.15(3) of Sch 1A, the Board was statutorily empowered to determine the applicant’s appeal by making a decision under s.23 (1) of Sch 1A by either confirming or reversing the Director’s Decision. In the present case, the Board dismissed the applicant’s appeal without determining the merits of the applicant’s case on the materials that were placed before it. The Board has therefore arguably erred in dismissing the applicant’s appeal simply on account of his absence, and the Board’s Decision is therefore arguably unreasonable and irrational and is tainted with procedural unfairness.

Whether to extend time for the late application

10.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. The applicant was late for about 2 years and 3 months, which is extremely lengthy.

11.  The applicant did not provide any reason for the delay. Since I have in the above determined that the applicant’s Leave Application is reasonably arguable, the exercise of my discretion should therefore be guided by merits. In H v Director of Immigration[5] , the Court of Final Appeal held at [39] that that the aspect of delay is intrinsically bound up with whether leave to apply for judicial review should be granted, and the merits of the substantive application are relevant as to whether there is good reason for extending time to apply.

12.  Thus, a decision as to whether to extend time to apply for leave for judicial review, is inextricably tied to whether to grant leave and the merits of the intended judicial review.

13.  For late applications by non-refoulement claimants for leave to apply for judicial review the Board’s decisions, the court should give weight to the merits in deciding whether to extend time. In Re Siti Naisah[6], the applicants were an Indonesian mother and her Hong Kong-born daughter. The mother’s application to apply for leave to file the judicial review against a Board’s decision was late for more than 8 months. The Court of Appeal allowed the appeal of the minor daughter even though it rejected the mother’s explanation for the delay. In granting leave to the minor daughter, the Court of Appeal stated at [46]:

“In conclusion, we are of the view that it is reasonably arguable that the Judge should have extended the time for the 2^nd applicant to apply for judicial review, and the 2nd applicant's intended appeal against the Judge's refusal to give leave to apply for judicial review enjoys reasonable prospect of success.”

14.  Having regard to the merits that I have found in the Leave Application and the above cited judgments, and the requirement of a high standard of fairness, I should exercise my discretion to extend time to the applicant to file the Leave Application out of time.

15.  In the premises, and for all the given reasons, I am of the view that the applicants’ Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  Accordingly, I grant leave to the applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

17.  The Form 86 be amended on the court’s own motion.

18.  There shall be an extension of time for the applicant to file the application for leave to apply for judicial review out of time.

19.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

20.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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

Form CALL-1