LUONG THANH HAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 323/2022

[2026] HKCFI 2398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 323 of 2022

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 the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 30 December 2021 be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 11 May 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 30 December 2021 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 22 June 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. Subsequent to the hearing, it has come to my attention that the Notice of Hearing issued by post was returned to the High Court with the indication “incomplete address”. However, it is the Applicant who has failed to discharge his duty to provide and update the Court an address to which correspondence or notice can come to his attention in a timely manner.[2]  In any case, I have considered the merits of the Leave Application based on the materials available before me.[3]

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[4]

6.  First, the delay in question is around 1.5 months. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in his affirmation.

7.  Second, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[5]

8.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[6]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As matter stands, apart from contending the Board’s Decision and the Director’s Decision are wrong or unsafe, the Applicant has failed to identify any valid or effective public law grounds.[7]

9.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

10.  The primary decision makers are the Director of Immigration and the Board and 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 of Immigration).[8]

11.  The Board was acutely aware of the Applicant’s claim that he was in fear of being harmed or killed by the police in Vietnam. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found the centerpiece of his case does not stand. The Board therefore rejected the evidence of the Applicant and the factual basis of his claim entirely. In any case, the Board did and was entitled to find (1) the Applicant had never suffered injury which was “severe pain and physical or mental suffering reaching the minimum level of severity”; (2) even if his allegation of ill-treatment at a police station was true, there is no sufficient evidence to establish “official or passive acquiescence” on the part of the state; (3) state protection would be available; and (4) the Applicant has options for relocation within Vietnam.

12.  There is simply nothing to indicate the Board had failed to take into account any relevant matters. I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

13.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

14.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.

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