VU THI HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 729/2022

[2026] HKCFI 2705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 729 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 August 2022 for 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 17 February 2022 dismissing her appeal against the decision of the Director of Immigration (the “Director”) refusing her application for non-refoulement protection in his Notice of Decision dated 10 September 2021 (the “Notice”).

2.  The Applicant is a Vietnamese national, now aged 34.  She was arrested by the police on 15 September 2020.  She claimed to have sneaked into Hong Kong from Mainland China on 12 September 2020.  On 23 October 2020, she lodged a non‑refoulement claim by written signification.  Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now seeks leave to apply for judicial review of the Board’s Decision. 

3.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims she will be harmed or killed by a moneylender for being unable to repay her debt owing to the moneylender. 

The delay in taking out the leave application

4.  The leave application was filed 5 months and 19 days after the date of the Decision sought to be reviewed.  Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application 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.  The leave application was made 2 months and 19 days out of time.  The Applicant has to show good reason for extending the time to file the leave application.

5.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung [3], per Litton PJ.  

6.  Despite clear warning in the Form 86 that an applicant is required to state her grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application.  At the hearing, after the relevant legal provisions as mentioned in the above paragraphs had been explained to her, the Applicant claimed that she had never received the Decision.  She only came to know that a decision on her appeal against the Director’s Notice had been made when she reported her recognizance at the Immigration Department.  Then she made the leave application immediately. She said at the material time she had been moving around living in different places. 

7.  The Applicant’s address as stated in her Notice of Appeal to the Board is at Yau Tsim Mong (the “Yau Tsim Mong address”).  She said she ordinarily resides at the Yau Tsim Mong address but occasionally she lives with her friend in Wong Tai Sin (the “Wong Tai Sin address”).  She said she was residing at the Wong Tai Sin address at the time of the hearing of her appeal.    

8.  The Applicant’s address as initially stated in her Form 86 and supporting affirmation is the Yau Tsim Mong address, but she deleted it and replaced it with an address in To Kwa Wan (the “To Kwa Wan address”).  Her address as discovered from the Immigration Department is also the Yau Tsim Mong address.  She said that the To Kwa Wan address is used as her correspondence address. 

9.  If the Applicant ordinarily resides at the Yau Tsim Mong address but occasionally at the Wong Tai Sin address, she would recover her mails when she returned to the Yau Tsim Mong address after a short spell of absence. There was no particular reason for her to specifically try to impress the Court that she was residing at the Wong Tai Sin address when the Decision was issued and to suggest that was the reason for her failure to receive the Decision.

10.  If she indeed ordinarily resides at the Yau Tsim Mong address, there was also no reason why when she filed her Form 86, she deleted the Yau Tsim Mong address previously type-written on the form and replaced it with the To Kwa Wan address, which she said was a correspondence address where her friend lives. 

11.  The Applicant’s explanation is inherently contradicting and incredible.  This Court is not impressed that she was telling the truth and is therefore not satisfied that there is good reason to extend the time for filing her leave application.  Nevertheless, out of caution and for completeness, the Court also scrutinized the Board’s Decision with anxious scrutiny. 

Overall scrutiny

12.  The Applicant’s case is that in September 2019 she borrowed 200 million Vietnamese Dongs from a moneylender with triad background at a monthly interest of 5% of the loan, ie 60% per annum.  She used the loan to start her boutique shop.  A fire broke out in September 2020 and destroyed the entirety of her stock.  She became unable to pay her debt.  She was beaten up by the moneylender’s underlings in her home once and threatened with death on several occasions.  Out of fear, she fled to Hong Kong via Mainland China. 

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It researched extensively into authoritative and credible country of origin information (“COI”), in particular about moneylending practice in Vietnam.  It analyzed the evidence carefully and tested it against common sense, inherent probability and COI. 

14.  The Board found numerous inherent inconsistencies in the Applicant’s evidence, such as whether the monthly interest of 10 million Dong was inclusive of part repayment of principal or just solely for payment of interest; the total amount of repayment made; whether it was her boyfriend in Hong Kong or another friend in Mong Cai who advised the Applicant to flee to Hong Kong; whether swords and knives were used by the moneylender’s underlings in attacking the Applicant or that she was just hit with a wooden stick once on her arm.  The Board tested the Applicant’s case against the COI.  It found her case contain numerous impossibilities, such as that the moneylender lent without making any background check about her previous experience, past income and work experience.  Given her background, the Board found it inherently improbable that the moneylender would have lent her such a huge sum of money.  It found the Applicant incredible and her evidence unreliable. 

15.  The Board made some necessary finding of facts on the basis of the Applicant’s evidence and the COI.  As the Applicant said she was only beaten once with a wooden stick and did not requirement medical treatment, it found the injuries or ill-treatment suffered by her did not attain the minimum level of severity.  It found the dispute between the Applicant and the moneylender is a private monetary dispute, that the moneylender is not a state agent, that the Applicant’s fear of harm is not well-founded and not for a reason enumerated in the 1951 Convention relating to the status of refugees and the 1971 Protocol.  It found the Applicant had failed to discharge her burden of proving why she could not obtain and seek state protection and that internal relocation is infeasible.  Then, applying the law applicable to non-refoulement protection under USM” to the above finding of facts, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM. 

16.  The Board’s findings are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  The Court’s primary finding is that the Applicant has failed to show good reason for extending the period for filing.  It also finds in the further and alternative that even if there were (which this Court does not accept), leave should not be granted primarily for want of merits.  For these reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

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