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

HCAL 437/2023

[2026] HKCFI 4224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 437 of 2023

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 the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 21 March 2023 (the “Form”), the Applicant applied for 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 9 December 2022 (the “Board’s Decision”).

2.  In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant did not name any interested parties. As it is trite that the Board should be the only proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 July 2026. Notice of Hearing was issued to the Applicant at the address provided by the Applicant to the Court and at the address provided by the Immigration Department. No returned mail has been received by the Court as of the date of this judgment. The Applicant was further reminded of the hearing by phone on 13 July 2026. Despite the aforesaid, the Applicant did not attend the hearing.

4.  As the Notice of Hearing was properly served at the addresses provided by the Applicant and the Immigration Department, and that he was further reminded of the hearing by phone, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

5.  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, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  The Board’s Decision was issued on 9 December 2022. The Leave Application was however only made on 21 March 2023. The Leave Application was thus not made promptly, and in any event not made within the three-month period provided under O 53 r 4(1) of the Rules of the High Court (Cap 4A) (“RHC”).

7.  In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

8.  In the present case, the delay was about two weeks. There is no application for extension of time. There is equally no explanation for the delay.

9.  Notwithstanding the absence of any explanation for the delay, I shall proceed to consider the merits of the intended judicial review, as this is an important consideration in deciding whether to grant the extension.

10.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board 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) materials, 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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.)

11.  The Applicant had attached a document entitled “Grounds on which relief is sought” to the Form (the “Grounds”). In the Grounds, the Applicant sought to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 30 November 2021 (the “Director’s Decision”).

12.  The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

13.  The Applicant did not provide any grounds in support of the Leave Application in the supporting Affirmation. He simply attached the Board’s Decision thereto. The Applicant raised a number of points in the Grounds, which can generally be summarized as follows: -

(1)  The Director and the Board had wrongly assessed his claims. The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test). The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”). He further claimed that the right to life is mainly protected by the criminal law and it must be protected from killings that he may face if he is deported back to his country.

(2)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case.

(3)  The Board had acted unreasonably and was procedurally unfair by placing too much reliance on COI materials but had failed to take his personal background and experience into account. Further, although the Director had listed relevant COI materials which support the aversions that the police in his country would not be able to protect, the Director had failed to consider or give enough weight to such evidence and ruled otherwise.

(4)  The Board was procedurally improper and/or unfair when assessing whether to accept or not accept explanations provided by him, and had unreasonably required him to respond to questions that he was not in a position to offer any responses.

(5)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(6)  The Director had shown an unfair attitude towards the Applicant or the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had compiled reports on the matter which support the Applicant’s assertions.

(7)  The Director had failed to attain the high standard of fairness required by the Wednesbury test. As such, the Director’s Decision is unreasonable.

(8)  The Board’s Decision and the Director’s Decision are irrational.

14.  I do not consider any of the above Applicant’s contentions meritorious. I shall briefly set out my reasons below. In so far as the Applicant’s complaints are made against the Director, I refer to my ruling in §12 above. I shall further consider such complaints as if the complaints were made against the Board as well.

15.  In relation to point (1), the Board had cited and applied the correct legal principles under Article 2 of the HKBORO (§§22, 63-64 of the Board’s Decision). The Applicant’s case is based on his inability to repay the outstanding debt owed to his creditor. The Board was entitled to find that the Applicant’s case failed to satisfy the requirements under Article 2 of the HKBORO.

16.  In relation to point (2), as mentioned above, the Applicant’s case is based on his inability to repay the outstanding debt owed to his creditor. There is no allegation or evidence to suggest that the state or any public officials were involved (§61 of the Board’s Decision). Accordingly, this ground has no relevance in the context of the case.

17.  In relation to point (3), the Applicant has failed to identify the precise COI materials which he alleged the Board had placed too much reliance on, and has failed to explain why he said so. He has also failed to state his personal background and experience which he alleged the Board had overlooked, and has failed to explain the relevance thereto. The Board had thoroughly considered the COI materials and concluded that the Applicant’s contention about the inadequacy of state protection was not well founded (§§40-47, 55-56 of the Board’s Decision). I see no errors in the Board’s decision in this regard.

18.  In respect of point (4), the Applicant’s complaint is bare assertion without proper particulars. He has failed to identify the questions which he claimed the Board had unreasonably required him to answer. He has equally failed to identify precisely which explanation he had provided to the Board which the Board had allegedly unfairly and improperly refused to accept, and has failed to explain why he said so.

19.  In respect of point (5), the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight.

20.  In relation to point (6), the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. The Board had duly considered the COI materials relating to the corruption and incompetence issues in Vietnam (for instance, see §§40-47, 55-56 of the Board’s Decision).

21.  Point (7) is a general assertion without particulars in support. The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

22.  Point (8) is equally a bare assertion without particulars in support.

23.  Having carefully and fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the claims based on the reasons provided (§§50-71of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

24.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

25.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

26.  As the Leave Application was made out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant had made such application. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above.

27.  In the premises, I make an order that the Form be amended as stated 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