VU VAN BAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1402/2020

[2025] HKCFI 5799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1402 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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time to the applicant’s application for leave to apply for judicial review out of time.

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

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 6 July 2020, 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 1 March 2019 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 14 March 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001402_2020_files/the_Board's_Decision.pdf

2.  Notwithstanding that both the Director’s Decision and the Board’s Decision are both in Chinese, this court is satisfied that it is expedient to render the decision in the Form Call-1 in English as the Form 86 and the supporting affirmation were both prepared in the English language.

3.  In the Form 86, the applicant named the Board and the Immigration Department Director as the proposed respondents as well as the Board as the interested parties. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

4.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor for unpaid loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

6.  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.

7.  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. The Form 86 and the supporting affirmation provided none at all.

8.  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, the Board found that the applicant’s evidence suspicious and that he was not a credible witness. The Board found that the alleged past ill-treatment from the creditor and his henchmen did not reach the requisite level of suffering. It further found that state protection and internal relocation were reasonably available. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to grant extension of time

10.  More importantly, there is a substantial delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Application had expired on 1 June 2019, and this application is late for about 1 year and 1 month.

11.  The applicant gave no explanation at all for the delay. Having regard to the conclusion above that the intended challenge does not have any prospect of success, this court declines to exercise its discretion in granting an extension of time for late filing of the Leave Application.

Orders

12.  The Form 86 be amended on the court’s own motion.

13.  There shall be no extension of time granted to the applicant’s application for leave to apply for judicial review out of time.

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