HOANG TRONG TRUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 310/2020

[2025] HKCFI 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 310 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53 rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “the decision of the Torture Claims Appeal Board dated 5 February 2018”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 5 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") and the Immigration Department dated 20 February 2018.

2.  However, neither the Board nor the Immigration Department gave any decision dated 20 February 2018. The Board only gave a decision dated 5 February 2018 (“the Board’s Decision”).

3.  The Director of Immigration (“the Director”) gave 3 decisions on 22 October 2015, 7 April 2017 and 13 December 2019 respectively. The Board’s Decision was dealing with the applicant’s appeal/petition against the Director’s 1^st and 2^nd decisions, but there was no decision from the Board dealing with the Director’s 3^rd decision.

4.  In any event, only the Board’s Decision is reviewable by judicial process and not the Director’s decisions. There are established statutory procedures of appeal from the Director to the Board, and the Director’s decisions would be superseded by the Board’s decisions. Hence, the Director’s said decisions are not susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022).

5.  The applicant could have made a mistake in respect of the date of the Board’s Decision. This court will treat the Leave Application as being made in respect of the Board’s Decision dated 5 February 2018, instead of 20 February 2018.

Amendments

6.  As the applicant has stated a wrong date for the Board’s Decision in Form 86, the decision in respect of which relief is sought is amended to the Board’s Decision dated 5 February 2018 on this court’s own motion.

7.  The applicant has also named the putative respondent and the putative interested party incorrectly in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

8.  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, ie when the Board’s Decision was made.

9.  However, the applicant filed Form 86 only on 5 March 2020, which is more than 2 years from the date of the Board’s Decision. The applicant was therefore late for more than 21 months in making the Leave Application.

10.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. The delay was very substantial with no explanation given. There is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the intended application.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000310_2020_files/the_Board's_Decision.pdf

14.  In sum, the applicant claimed for non-refoulement protection because he was heavily indebted to notorious loan sharks in Vietnam and feared that he would be killed by them if he returned to Vietnam.

Grounds for judicial review

15.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.  The applicant failed to identify any grounds for the intended judicial review. He merely stated in the supporting affirmation that he did not agree with the Board’s Decision because he could not go back to his own country and his life would be in danger over there.

Discussion 

17.  The Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.  Having rigorously examined the Board’s Decision 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 the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

20.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

21.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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