LUU THI HANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 990/2020

[2025] HKCFI 6294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 990 of 2020

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 the Applicant being absent in open court;

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

2.  Any reference to the 2^nd applicant, Bao Nhi, be struck out from the title of Form 86 and the supporting affirmation.

3.  There shall be no extension of time to the 1^st applicant to file the Form 86 out of time.

4.  The 1^st applicant’s application for leave to apply for judicial review against the Board’s Decision dated 23 December 2019 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 25 May 2020, the mother (“A1”) and her minor daughter (“A2”) 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 “13 May 2020”.

2.  However, according to our record, there was not any decision of the Board dated 13 May 2020. The only decision of the Board was a decision dated 23 December 2019 (“Board’s Decision”) dismissing A1’s appeal against the decision of the Director of Immigration (“Director”) dated 8 November 2019 (“Director’s Decision”) rejecting A1’s non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000990_2020_files/the_Board's_Decision.pdf

3.  In A1’s supporting affirmation, A1 also exhibited the Board’s Decision. In the circumstances, I believe A1 had made a mistake in the Form 86 regarding the date of the Board’s Decision. I direct an amendment to the date of the Board’s Decision in the Form 86. Further, in the Form 86, the applicant did not name any interested party. As the Director should have been the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

4.  Irrespective an inclusion in the Form 86 A2 as one of the applicants, this court believes that the Leave Application is only concerned with A1 only. This is because the Director’s Decision as well as the Board’s Decision were in respect of A1 alone. There is a later decision of the Director dated 11 August 2021, in which the Director dismissed A2’s non-refoulement claim on all applicable grounds brought by A1 on behalf of A2. Insofar as A2 is concerned, this court is not aware that there was any appeal by A2 against the Director’s decision concerning A2. In the circumstances, it is plain that the Leave Application is only in respect of A1 alone. For clarity, I will strike out all references to A2 in the title of the documents A1 filed.

5.  The basis of A1’s claim was that, if refouled to Vietnam, she would be harmed or killed by her debtor for a large outstanding 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.

6.  Pursuant to A1’s request for a hearing of the Leave Application, this court scheduled a hearing on 4 December 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 13 November 2025 was sent to A1’s last known address by ordinary post. A1 did not turn up at the hearing. Before the hearing and on the day of the hearing, several phone calls were made to A1’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.

7.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

8.  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.

9.  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. No such grounds have been provided by A1in either her Form 86 or the supporting affirmation.

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 A1 was not a credible, truthful witness. The Board found that there was no evidence that her creditor had any intention to kill or harm her. It further found that the past ill-treatment was minor and did not meet the requisite level of severity. The Board concluded that there was no real risk of harm if A1 were refouled. 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. A1 advanced no grounds at all in support of the Leave Application. Hence, A1 has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. A1 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 delay of about 2 months 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 the Board Decision was delivered.

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 provided no explanation at all for the delay. In view of the delay and the absence of good reason for the delay explanation, and importantly, the lack of merits, I refuse to exercise my discretion to grant an extension of time.

Orders

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

16.  Any reference to the 2^nd applicant, Bao Nhi, be struck out from the title of Form 86 and the supporting affirmation.

17.  There shall be no extension of time to the 1^st applicant to file the Form 86 out of time.

18.  The 1^st applicant’s application for leave to apply for judicial review against the Board’s Decision dated 23 December 2019 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