PHAM HUY DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 925/2021

[2026] HKCFI 2079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 925 of 2021

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.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

3.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

4.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 29 June 2021, 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 10 May 2019 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 2 March 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000925_2021_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and Director as the proposed respondents and used the address of the Board as the interested party. 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.

3.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor for an 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.

4.  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

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision. It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly, 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.

7.  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. In the present case, the applicant was late by more than 2 years when he filed his Notice of Appeal to the Board against the Director’s Decision. In the Board’s Decision, the Board refused the late filing of the appeal against the Director’s Decision after it rejected the applicant’s reason for his delay. The Board concluded that there were no relevant matters of fact within its knowledge or special circumstances that would render it unfair or unjust in disallowing the late filing of the applicant’s notice of appeal. In refusing the late filing of the appeal, the Board did not consider the merits of the claim.

Applicable legal principles governing late filing of notice of appeal to the Board under s.37ZT of the Immigration Ordinance

8.  Notwithstanding the amendments on 1 August 2021 to s.37ZT (2), the case law interpreting them will still apply in this case. In Re Khan Kamal Ahmed[2] and Re Qasim Ali[3], the Court of Appeal held that under s.37ZT (2)(b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20]. Recently, the Court of Appeal in Re Doyaoen Josephine Biba [4] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2nd Decision on BOR 2 risk. Hence, the facts of the present case are totally different to those of the Court of Appeal’s decision in Re Doyaoen Josephine Biba.

9.  When considering whether to allow the late filing of the notice of appeal, a Board is required to take into account “any other relevant matters of fact within the knowledge of the Board” under s.37ZT (2), which includes a duty to “take the merits of the applicant’s case into account”: See Re Khan Kamal Ahmed [17]-[20].

10.  In the present case, the Board had not assessed the merits of the applicant’s claim. Thus, it would not be apparent to an objective reader of the Board’s Decision whether the Board had in fact considered the merits of the applicant’s claim.

11.  As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality. The discretion to extend time for appeal is vested in the Board. A high standard of fairness obliges the Board to undertake an examination of the merits. Thus, the Board’s failure to take into account relevant facts or circumstances is reasonably arguable that the Board’s Decision was erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness.

Whether to extend the time for the late filing of the Leave Application

12.  In the present case, 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 the Board’s Decision was delivered. After taken into account the period of the “General Adjournment of Proceedings”[5] , which was commonly known as “GAP” from the period of 29 January to 3 May 2020 due to the prevailing Covid, I believe that the applicant was still late for more than one and a half year.

13.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.

14.  The applicant provided no explanation for the delay in the documents that he filed.

15.  A delay of more than one and a half year is lengthy. While the delay in filing the Leave Application is certainly lengthy, I should however have regard to the fact that Court of Appeal’s judgments in Re Khan Kamal Ahmed and Re Qasim Ali were not available until 2 and 8 April 2019 respectively, and that these decisions provide a good prospect of success in the intended judicial review, I believe that this court should exercise its discretion in grant an extension of time to allow the late filing of the Leave Application.

Conclusion

16.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. There is a realistic prospect of success in the intended judicial review.

Orders

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

18.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

19.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

20.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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