KIEU DINH THUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 888/2020

[2025] HKCFI 4792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 888 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)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)  The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 13 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”)’s decision dated 13 June 2019 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 1 November 2018 (“the Director’s Decision”), which refused to re-open his non‑refoulement claim.

2.  Unless otherwise specified, I shall adopt the abbreviations and descriptions used in the Board’s Decision, the hyperlink to which is included below[1].

Discussion

3.  The Applicant is absent from the oral hearing. I proceed to consider the merits of the present application based on the materials available (see Re Abdus Salam [2019] HKCA 1091).

4.  The Applicant has made the Leave Application out of time. Pursuant to Order 53, rule 4 of the Rules of the High Court:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  For the reasons explained below, I do not consider that there is good reason to extend the period for the Leave Application to be made.

6.  In determining this matter, the relevant factors are as follows: (i) the length of the delay; (ii) the explanation for the delay; (iii) the merits of the substantive application; (iv) prejudice; and (v) whether the application raises questions of general public importance (see AW v Director of Immigration [2016] 2 HKC 393 (CA) at §§23-36; Re Thomas Lai [2014] 6 HKC 1 at §§43‑45 (cited in AW, supra); H v Director of Immigration (2020) 23 HKCFAR 248 at §§17‑22, 36-44 (citing inter alia AW and Thomas Lai, supra; Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19, upheld in [2022] HKCA 1321).

7.  First of all, the delay in question is substantial, and the Applicant has neither provided any explanation nor requested an extension.

8.  Most importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). I have reminded myself of the enhanced standard required by law to uphold a high level of fairness in decision-making, particularly in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

9.  I begin by setting out the facts material to the Board’s Decision:

(1)  On 31 August 2016, the Applicant submitted a written representation claiming that he was unable to return to Vietnam due to a fear of being killed by his creditor.

(2)  On 12 October 2016, in the presence of a Vietnamese interpreter, the Applicant was served a Notice to Persons Making a Non-refoulement Claim and a Non‑refoulement Claim Form (“the NCF”). He was also referred to the Duty Lawyer Service (“the DLS”) for publicly-funded legal assistance. On 13 October 2016, the DLS confirmed that they would act on his behalf.

(3)  On 2 November 2016, a written request was sent to the DLS, asking the Applicant to return the completed NCF within 28 days (i.e. on or before 30 November 2016). On 23 November 2016, a reminder was sent to the DLS to remind the Applicant of the deadline.

(4)  On 25 November 2016, the DLS wrote to inform the Director that they did not receive instructions from the Applicant and were unable to act further for him.

(5)  On 26 November 2016, the Director wrote to the Applicant directly, informing him that he was required to return the completed NCF on or before 30 November 2016, failing which his claim would be treated as withdrawn. However, the Director did not receive any completed NCF from the Applicant or any application for extension of time to return it.

(6)  On 23 December 2016, the Director wrote to the Applicant, informing him that his claim was treated as withdrawn on 1 December 2016.

10.  On 1 November 2018, the Director advised the Applicant that his non-refoulement claim would not be re-opened:

(1)  His claim was treated as withdrawn on 1 December 2016;

(2)  If he wished to apply to re-open his claim, he should, on or before 11 October 2018, provide sufficient evidence in writing to satisfy the Director that he had not been able to return the completed NCF as required due to circumstances beyond his control; and

(3)  However, he had failed to provide any reason for his failure to return the completed NCF within the prescribed period, let alone sufficient evidence to satisfy the Director that he had not been able to return the completed NCF as required due to circumstances beyond his control.

11.  Pursuant to section 37ZG (1)-(3) of the Immigration Ordinance, Cap 115:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—(a) the torture claim is treated as withdrawn under subsection (1); and (b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).”

12.  As set out in the Board’s Decision, it was only in May 2019 that the Applicant provided the following information:

(1)  On 10 May 2019, the Board received the Applicant’s written explanation dated 6 May 2019 that he would be killed if he were to return to Vietnam.

(2)  On 16 May 2019, the Board received two letters dated 8 April 2019 and 15 May 2019 from the Applicant explaining why he could not return to Vietnam and why he missed the appeal period.

(3)  On 30 May 2019, the Board received another undated letter from the Applicant explaining the background of this case.

13.  The pertinent question under consideration was whether the Applicant had satisfied the statutory conditions such that the Director should re-open his claim, notwithstanding his failure to return the completed NCF within the prescribed time (see Re Sudimah [2019] HKCA 1030 at §15). For the reasons set out in the Board’s Decision, the Board answered the question in the negative.

14.  The Applicant has completely failed to identify any valid ground for judicial review against that decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142):

(1)  In his first affirmation filed on 13 May 2020, the Applicant merely expressed disagreement with the Board and reiterated that he could not return to his country, alleging that his life would be in danger if he did.

(2)  Then, in his second affirmation filed on 16 February 2023, the Applicant changed his position, indicating that he wished to “withdraw” his application and “cancel” his case, confirming that he could return safely and should be repatriated as soon as possible.

(3)  In his latest affirmation filed on 28 February 2023, the Applicant has once again shifted his position, seeking to “re-open” his case based on the information received from a relative, alleging threats in Vietnam and that he would be killed if he returned.

15.  As is clear, there is no complaint of errors of law, procedural unfairness or irrationality in the Board’s Decision, nor am I satisfied that any such issues exist. In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

16.  In the premises, there is no reasonably arguable ground for judicial review with any realistic prospect of success. Accordingly, there is no justification for the court to intervene by judicial review.

17.  Regarding the question of prejudice, it is important to adopt a disciplined approach in order to prevent unnecessary disruption to the public administration and avoid the delay that would inevitably result from allowing unmeritorious application to proceed out of time.

18.  Lastly, I also do not observe, nor do I accept, that any question of significant public importance has been raised by the Applicant in this matter.

Conclusion

19.  For these reasons, I refuse the Leave Application and make the orders set out above.

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