CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1193 of 2021
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BETWEEN
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Nguyen Thanh Cong |
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 (Non-Refoulement Claims) Lewis Law:
1. Extension of time to file Form 86 be refused; and
2. The application for leave to apply for judicial review be dismissed
Observations for the Applicant:
1. By a Form 86 filed on 25 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 23 December 2020. The Director of Immigration (“DI”) was named as a putative interested party. The DI made a first tier decision on the Applicant’s non-refoulement claim on 20 December 2016. The Board’s decision sought to be reviewed can be seen from the following hyperlink[1].
2. The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.
3. The Applicant is a Vietnamese national. His non-refoulement claim was based on an alleged risk of being harmed or killed by a business partner cum moneylender. After an oral hearing, the alleged risk was found to be not real and not substantial. The Board accepted that there was available State protection and the claim did not fall within (a) the meaning of torture or (b) a Convention ground for persecution risk. Reasonable internal relocation alternative was also found available. The Applicant’s appeal/petition against DI’s tier-1 decision was hereby dismissed.
4. The Applicant has not set out any ground of judicial review. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).
5. I have reviewed the Board’s decision vigorously, but do not find the proposed judicial review reasonably arguable. It is also noted that the filing date of his Form 86 was 8 months after the date of the Board’s decision. The delay was substantial. In any event, because of the lack of merits in the Applicant’s case, which I have considered, it is inappropriate to extend time for the filing of the Applicant’s Form 86 after considering the applicable principles under authorities like AW v Director of Immigration [2016] 2 HKC 393.
6. The leave application is thus dismissed.
Dated the 4th day of February 2026
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(Teresa Ng)
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 4 February 2026
Nguyen Thanh Cong
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 4 February 2026
Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12908/18/8/178/V2163
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1889/16 (formerly RBCZ 10460/15) (T7I37)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1