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HCAL 287/2021
[2026] HKCFI 583
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 287 of 2021
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BETWEEN
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Bui Thi Doan |
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) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 5 March 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 November 2018 (the “Board’s Decision”).
2. In the Form, the Applicant named herself as the proposed respondent. The Applicant did not name any proposed interested parties. As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.
3. The Applicant requested an oral hearing for the Leave Application. The hearing took place on 27 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant in advance at the address provided by the Immigration Department in the letter dated 2 October 2025. As the Notice of Hearing was not issued to the address provided by the Applicant on the Form, the Court directed to have another hearing and that the notice of such hearing should be issued to both the address stated on the Form as well as the address provided by the Immigration Department.
4. A new hearing was accordingly scheduled on 12 January 2026. This time, the new Notice of Hearing was issued in advance to the Applicant at both addresses as directed by the Court above. Attempt was also made to contact the Applicant and remind her of the new hearing by phone at the number provided by the Immigration Department but in vain. The Applicant did not attend the hearing on 12 January 2026. As proper notice had been given to the Applicant in respect of the hearing, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.
Background
5. The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.
Discussion
6. The Board’s Decision was issued on 29 November 2018. The Leave Application was however only made on 5 March 2021. The Leave Application was accordingly filed significantly out of time for about 2 years.
7. No application for extension of time has been made by the Applicant. There is equally no explanation for the substantial delay.
8. In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.
9. In the present case, the delay was very substantial. In the Form and in the supporting Affirmation, the Applicant did not provide any explanation for the delay.
10. Notwithstanding the absence of any explanation for the substantial delay, I shall proceed to consider the merits of the intended judicial review, as this is an important consideration in deciding whether to grant the extension.
11. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, 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). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
12. The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant stated that her creditor still visited her home in Vietnam and demanded settlement of her debt. She said she will be killed if she returns to Vietnam.
13. I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled, and indeed correct, to find the evidence of the Applicant unclear, as the Applicant had given 2 different versions in relation to the loan – the name of the creditor was different, the number of loan obtained was different, the amount of loan obtained was different, the interest rate was different, and the time for paying interest was different (§27 of the Board’s Decision). The Board was entitled to find the Applicant not to be a credible witness (§§28-35 of the Board’s Decision). I do not see any errors committed by the Board in the reasoning. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
14. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.
Conclusion
15. As the Leave Application was made significantly out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant had made such application. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above. In the premises, I make an order that the Form be amended as stated above and the Leave Application be dismissed.
Dated the 4th day of January 2026.
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(Annson Cheung)
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
Bui Thi Doan
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 5531/16/12/178/V737
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2331/16
(Formerly RBCZ 11654/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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