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HCAL 1016/2025
[2025] HKCFI 3576
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1016 of 2025
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BETWEEN
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Do Hong Duong |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended on the court’s own motion.
2. There shall be no extension of time to the applicant to file the Form 86 out of time.
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 April 2025, 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”) in Chinese dated 27 December 2023 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) in Chinese dated 28 September 2023 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlinks: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001016_2025_files/the_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001016_2025_files/the_Board's_Decision_Corrigendum.pdf
2. Since the Form 86 is in English, this decision will also be prepared in the English language notwithstanding that the Director’s Decision and the Board’s Decision are both in Chinese.
3. In the Form 86, the applicant did not name any interested party. As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion.
4. The basis of the applicant’s claim was that he would be harmed or killed by the triad-connected loan shark for an unpaid loan. 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.
5. Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 July 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 17 June 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.
6. In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.
Discussion
7. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
8. 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.
9. The applicant did not provide any grounds in the Form 86. In the supporting affirmation, the applicant only stated that he would face the risk of being killed or harmed if he were to return to his home country.
10. 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 Board found the applicant’s evidence lacked credibility. It did not accept the applicant’s account about the loan. Neither did the Board accept the incidents of the alleged pursuit by the loan shark and his men, the threats or assault. The Board also found that on the applicant’s own account of the injuries, they did not attain the required level of severity, and further that the risk he faced was of a localized nature. Thus, the Board concluded there was no real risk of harm. The Board also found that state protection and internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
11. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].
Whether to grant extension of time
12. More importantly, there is a substantial delay in the Leave Application. 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 grounds for the application first arose. Hence, the deadline for the filing of the Leave Applicant expired on 27 March 2023, and this application is late for more than 1 year.
13. Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.
14. The applicant however has provided absolutely nothing to explain for the delay. In view of the lengthy delay, the absence of explanation, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time.
Orders
15. The Form 86 be amended on the court’s own motion.
16. There shall be no extension of time to the applicant to file the Form 86 out of time.
17. The application for leave to apply for judicial review be dismissed.
Dated the 20th day of August 2025
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( Alfred CHAN )
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 20/8/2025
Do Hong Duong
Applicant’s ref. no:
Nil. |
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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 20/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22275
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 891/23 (formerly as RBCZ 5000830/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”.
[2] Re Zunartyah [2018] HKCA 14 at [23].
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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