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HCAL 3787/2019
[2025] HKCFI 1589
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3787 of 2019
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Bui Ngoc Vu |
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 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 19 December 2019 (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 23 August 2019 (the “Board’s Decision”).
2. In the Form, the Applicant has named the Immigration Department as the proposed respondent, and the Immigration Department and the Board as the proposed interested parties. 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, I make an order to amend the Form accordingly on the court’s own motion.
3. The Applicant had requested an oral hearing for the application. The hearing took place on 17 March 2025 and the Applicant attended in person.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.
Discussion
5. The Board’s Decision was issued on 23 August 2019. The Form was however only filed on 19 December 2019. After discounting the Court’s vacation in August 2019, the Leave Application was still filed out of time for about 3 weeks.
6. No application for extension of time to file the Leave Application was made by the Applicant. There was no explanation for the delay in either the Form or the supporting Affirmation. At the hearing on 17 March 2025, when being asked about the delay, the Applicant explained that he was late in filing the Leave Application because he was detained in prison at the time and so he could not process the application.
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, there was a delay of about 3 weeks. The fact that the Applicant was detained at the time is not a valid reason for the delay. I note from the Certificate of Imprisonment issued by the Correctional Services Department dated 5 December 2019 that the Applicant was detained from 29 March 2019 to (at least) 26 January 2020. The Applicant was able to file the Form on 19 December 2019 (when he was still detained). There is no reason why he could not do so within the time limit. Accordingly, I do not consider that there is valid explanation for the delay.
9. As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time to apply for leave for judicial review, I shall proceed to consider the merits of the Leave Application.
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 Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application. He just stated in the supporting Affirmation that he objected to the Board’s Decision and the decision of the Director[2]. At the hearing on 17 March 2025, when asked whether he had anything to say in support of the Leave Application, the Applicant simply said he wished to be allowed to stay in Hong Kong to avoid the “debt problem” in Vietnam.
12. I have considered the Board’s Decision in details. 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 to have serious doubt on the credibility of the Applicant based on its analysis of the evidence (see §§33 to 41 of the Board’s Decision). 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.
13. 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
14. As the Form was filed out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time even if the Applicant makes such application. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 22nd day of April 2025.
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(Allen LEE) |
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for Registrar, High Court |
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 22/4/2025
Bui Ngoc Vu
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 22/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8399/17/9/71/V1654
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1796/17 (formerly RBCZ 10316/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003787_2019_files/the_Board's_Decision.pdf
[2] I note that the dates of the decisions stated in the supporting Affirmation are incorrect.
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