NGUYEN VAN XINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 426/2022

[2026] HKCFI 1776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 426 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 the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 28 March 2018 be refused.

3.  The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 2 June 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 28 March 2018[1] (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 21 September 2017 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[2] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have considered the merits of the Leave Application based on the materials available before me. [3]

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap. 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[4]

6.  First, the delay in question is very substantial i.e. almost 4 years. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in his affirmation.

7.  Second, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[5]

8.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[6] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As matter stands, apart from contending the Board’s Decision and the Director’s Decision are wrong or unsafe, the Applicant has failed to identify any valid or effective public law grounds.[7]

9.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

10.  The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of Immigration).[8]

11.  The Board was acutely aware of the Applicant’s claim that he will be harmed or killed by over ten creditors including a NQA because he could not repay his debts. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found that his case was incapable of carrying evidential weight. The Board was therefore entitled to reject the factual basis of his claim. In any case, the Board did and was entitled to find (1) the Applicant had not suffered any severe injury or serious harm reaching the minimum level of severity such that he would face any future risk of serious harm; (2) the alleged harm or threat of harm was not instigated by a state agent; (3) state protection would be available; and (4) internal relocation within Vietnam would also be a viable option.

12.  There is simply nothing to indicate the Board had failed to take into account any relevant matters. I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

13.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

14.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.

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