NGUYEN QUANG VUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 453/2021

[2025] HKCFI 4173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 453 of 2021

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;

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

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 March 2021, the applicant 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 4 May 2020 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 19 July 2019 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000453_2021_files/the_Board's_Decision.pdf

2.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  The applicant has requested for an oral hearing. On 27 May 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (3) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw the Leave Application. Enclosed with the said letter was the applicant’s signed hand-written letter in Chinese dated 23 May 2025 together with the signature of the interpreter. In the letter, the applicant stated that he would like to withdraw the Leave Application as he wanted to go back home as soon as possible. He stated that his problems had been solved and it was safe for him to return. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. Apart from giving an explanation as to why the Leave Application was filed late, the applicant’s Form 86 and the supporting affirmation provided no such grounds

6.  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.[3] In the present case, after having taken into consideration the applicant’s evidence, the Board found that there were no special circumstances to make it unjust for allowing the re‑opening of his non-refoulement claim. It therefore concluded that the applicant could not satisfy the test under 37ZG of the Immigration Ordinance. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

8.  Furthermore, the Leave Application was late for almost 7 months. In his supporting affirmation, the applicant stated that the reason for the delay was because he had no knowledge in English, and that he had no financial means to obtain legal advice. I do not find the reason for the delay a reasonable one. Having regard to the length of the delay, the lack of merits and the lack of good reason for the delay, the court is disinclined to exercise its discretion to allow the applicant to file the Leave Application out of time.

Withdrawal application

9.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

10.  The applicant’s application for leave to apply for judicial review 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