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HCAL 1486/2022
[2026] HKCFI 2656
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1486 of 2022
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BETWEEN
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Dinh Chinh Long |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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:- 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 13 December 2022 (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 10 June 2022 (the “Board’s Decision”).
2. In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas 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 29 April 2026. Notice of Hearing was issued to the Applicant at the address provided by the Applicant on the Form in advance, which is also the address of the Applicant as confirmed by the Immigration Department. Attempt was also made to remind the Applicant of the hearing by phone at the number he provided on the Administrative Form (which was also the number confirmed by the Immigration Department) on 23 and 24 April 2026 but in vain. The Applicant did not attend the hearing.
4. As the Notice of Hearing was properly served at the address provided by the Applicant, 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 his claim and the arguments he 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 10 June 2022. The Leave Application was however only made on 13 December 2022. The Leave Application was thus not made promptly, and in any event not made within the three-month period provided under O 53 r 4(1) of the Rules of the High Court (Cap 4A).
7. 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.
8. In the present case, the delay was about 3 months. There is no application for extension of time. There is equally no explanation for the delay.
9. Notwithstanding the absence of any explanation for the 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.
10. 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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.)
11. In the present case, the Applicant has not provided any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply attached the Board’s Decision.
12. Having carefully considered the Board’s Decision. 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 Applicant had previously come to Hong Kong illegally for job-seeking (§2 of the Board’s Decision). The Board was entitled to find the Applicant to be untruthful, his evidence to be inconsistent and problematic, and reject his claims (§§12-37 of the Board’s Decision). I see no errors in the Board’s findings and reasoning. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.
13. In the premises, 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 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.
16. In the premises, I make an order that the Form be amended as stated above and the Leave Application be dismissed.
Dated the 14th day of May 2026
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(Joyce Ooi)
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 14/05/2026
Dinh Chinh Long
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 14/05/2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17720/21/3/39/V2788
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 927/20 (formerly RBCZ 86/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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