TRAN HUU NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1031/2020

[2025] HKCFI 3440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1031 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party;

2.   Extension of time to file the application for leave to apply for Judicial Review be refused; and

3.   The application for leave to apply for judicial review be dismissed.

 

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 28 May 2020 (the “Form 86”), the Applicant sought 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 31 October 2019 (the “Board’s Decision”).

2.  As it is usual practice 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 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 18 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history 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.  In short, it is the Applicant’s claim that he was indebted to an individual known as Hoang Van Hung (the “Creditor”) and that he would be subject to serious harm or even be killed by the Creditor or his associates should he be returned to Vietnam.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 31 January 2020.  However, the Form 86 was filed late for almost 4 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), 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. 

7.  In the present case, the delay of about 4 months is serious.  In his affirmation accompanying the Form 86, the Applicant claimed that he had moved to other addresses and he did not know that he had to inform the Board.  He only found out about the Board’s Decision when he was reminded by others.  At the Hearing, I inquired with him further as to the circumstances in which he found out about the Board’s Decision but the Applicant was unable to provide much assistance.  Whilst this may be understandable given the lapse of time and I am prepared to accept his explanation for the delay as genuine.  However, ignorance of the relevant legal requirement[2] is, in my view, not a valid reason for the delay.  

8.  In my judgment, the most crucial factor in deciding whether to exercise my discretion to extend time is the merits of the Leave Application.  If it is unmeritorious, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that he has a reasonable explanation for the delay.

Merits

9.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal.  Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny 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”), 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, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

10.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142. In the Form 86 and the accompanying supporting affirmation, the Applicant did not provide any grounds in support of the Leave Application. 

11.  At the Hearing, the Applicant confirmed he had nothing else to add in respect of the Leave Application.

12.  Having rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness:-

(1)  The Board was entitled to reject the Applicant’s factual account of the loan he took out from the Creditor, having regard to the inherent probabilities and apparent lack of logic of the transaction (at §§28-30).

(2)  Further, I do not see any basis to interfere with the Board’s finding that there was no risk of threat, given that there is no evidence that the Creditor has ever harmed his parents who lived in the same house (at §§32-38). It would seem completely illogical for Creditor (who is said to be affiliated with criminal gangs) to act in such manner if the Creditor was keen to recover payment from the Applicant.

(3)  Having regard to relevant COI and the personal circumstances and ability of the Applicant, the Board was plainly correct to find that sufficient state protection and reasonable internal relocation alternatives were in any available to the Applicant as there is no credible evidence to support the Applicant’s bare assertion that the Creditor would have the means to pursue him throughout Vietnam, which is, after all, a large country (at §§8, 39-43, 59-61).

13.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospect of success.  Hence, I see no reason to grant a time extension.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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