DAO HUY HOANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1079/2026

[2026] HKCFI 4846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1079 of 2026

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 no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  The applicant’s 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 12 June 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 1 April 2025 (“Director’s Subsequent Decision”) refusing the applicant's request (“Request”) for making a subsequent claim under s. 37ZO of the Immigration Ordinance (Cap 115).

2.  This court scheduled a hearing on 18 August 2026. The applicant attended in person and submitted that he wished to stay in Hong Kong longer as his mother has gone missing after they had returned to Vietnam.

3.  The following background is taken from the Director’s Subsequent Decision.

Background

4.  On 16 December 2016, the Director rejected the applicant’s (along with his mother’s) non-refoulement claim on all applicable grounds[1] (“Director’s Decision”). The applicant was 15 at the time of the making of the non-refoulement claim. Hence, he was still a minor. The basis of his claim (and of his mother) was that, if refouled to Vietnam, his mother would be harmed by the creditors of her eldest son who was shot by the creditors. On 8 November 2018, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeal against the Director’s Decision. On 15 April 2021, a Deputy Judge of the High Court dismissed his (and his mother’s) appeal against the Board’s Decision. ([2021] HKCFI 967). On 18 March 2022, the Court of Appeal dismissed ([2022] HKCA 398) the appeal against the Deputy Judge, and on 2 March 2023, it refused ([2023] HKCA 238) to grant leave to appeal to the Court of Final Appeal. On 25 August 2023, the applicant and his mother were repatriated to Vietnam.

5.  On 17 December 2024 the applicant was arrested by the police by having illegally entered Hong Kong in September 2024. On 21 December 2024, the applicant made the Request. The basis of the applicant’s claim in the Request was that, if refouled, he would be harmed or killed by his mother’s creditor for an outstanding loan, which she borrowed for business expansion.

Discussion

6.  The 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.

7.  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.  In the Form 86, the applicant averred that the Director had acted unreasonably and unfairly in having placed too much reliance on the Country of Original Information without taking into account his personal background and experience. The Director was procedurally improper and unfair in requiring him to provide response that he was not in a position to respond. The applicant’s supporting affirmation did not provide any grounds.

8.  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]

The statutory provisions on subsequent claims

9.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

37ZO. " Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

10.  The applicant was not legally represented in the Request, and did not submit further information and evidence in support of the Request as Director had requested. Having considered the applicant’s claim, the Director found that the applicant’s new fear was still originated from an inability to repay outstanding debt even though the alleged creditor was different than the previous claim made by his mother on his behalf. Having regard to the findings made in the Director’s Decision and the Board’s Decision, the Director found that there were no sufficient grounds to believe that there was a significant change of circumstances that would negate the availability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success, thus refused the Request.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds set out in Form 86 were vague and did not condescend to particulars.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

12.  Another matter I need to consider is the delay. 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 of a decision. The applicant was late for about 11 months.

13.  At the hearing, the court asked the applicant to provide an explanation for the delay. Apart from stating that he was ignorant of the procedure due to his young age and that he had no financial means to engage a lawyer, the applicant was unable to give a satisfactory explanation at all. In the circumstances, the court would refuse to exercise its discretion to grant him an extension of time to file the Leave Application.

Order

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

15.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

16.  The applicant’s application for leave to apply for judicial review be dismissed.

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