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

HCAL 691/2020

[2025] HKCFI 4236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 691 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, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and replacing “from Torture Claims Appeal Board” with “of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office”; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 dated and filed on 17 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 17 April 2020 (“the Affirmation”), she sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which is also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 11 June 2019 (“TCAB Decision”)[1], which was exhibited to her Affirmation. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of her application. She appeared at such as scheduled on 26 May 2025. As and for reasons explained below, the hearing did not conclude that day but was adjourned to and concluded on 18 June 2025.

3.  I have amended the Form 86 to reflect the reflect the identity of the proper putative Respondent, the proper Interested Party, and the decision-maker of the TCAB Decision.

Background

4.  The background to the Applicant’s non-refoulement claim and its assessment below is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if she were sent back to Vietnam, she would be harmed or killed by Thang (her creditor) and his subordinates due to an outstanding loan;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 22 June 2017 (“Director’s Decision”);

(3)  The Applicant then filed the Appeal to the TCAB/NRCPO. The latter had in December 2018 served, by post, a Notice of Hearing on her last known address. That Notice of Hearing had not been returned undelivered up to the scheduled hearing date of 25 April 2019;

(4)  On 25 April 2019 the Applicant did not attend the scheduled hearing (“April 2019 Hearing”), and efforts by the Secretariat of the TCAB to contact her by telephone were unsuccessful;

(5)  On 26 April 2019 the TCAB/NRCPO sent a letter to the Applicant’s last‑known address asking her to tender an explanation in writing for her absence within seven days. However, by 14 May 2019 the letter had not been returned undelivered, and no response had been received from the Applicant. During that period the Director also informed the TCAB/NRCPO that the Applicant had failed to fulfil her reporting requirements to the Immigration Department since 28 February 2019; and

(6)  The TCAB/NRCPO hence decided to determine the appeal/petition in her absence and without further notice to the Applicant, and handed down the TCAB Decision on 11 June 2019, in which the decision-maker held that the Applicant had failed to establish any of the four types of risk, dismissed the Appeal, and confirmed the Director’s Decision.

5.  The Applicant eventually filed the present application over 7 months out of time. The Form 86 and the Affirmation are both in English (the latter with a translation clause) and are neatly typed and formatted. The Form 86 also seeks specific remedies including certiorari and remittal to the TCAB/NRCPO. In the Affirmation the Applicant exhibited the TCAB Decision and sought to explain her late application for judicial review with reference to why she did not attend the April 2019 Hearing as follows: “Few days before the hearing, my creditor had his men came to my premise in Hong Kong and threatened me, either repay the money or they will kill me. I was too frightened that I had to move to various address to hide myself from that day till this year, April 2020.” It is clear that both documents have had the benefit of input from someone with legal training.

6.  The Applicant subsequently filed another affirmation dated 5 October 2022 (“2^nd Affirmation”), in which she applied for leave to amend the Form 86 “to include [my] daughter” (“Daughter”). The 2^nd Affirmation exhibited inter alia a decision of the TCAB/NRCPO (constituted by the same member/adjudicator who had made the TCAB Decision) dated 10 August 2022 relating to her Daughter’s non-refoulement claim (“August 2022 Decision”), who had been born on 9 July 2020 and whose non-refoulement claim had been filed on 9 April 2021. The August 2022 Decision had been reached after a hearing on 6 January 2022 (“January 2022 Hearing”) where the Applicant represented the Daughter and testified to the TCAB/NRCPO, and had rejected her Daughter’s non-refoulement claim.

7.  The 2^nd Affirmation made some allegations relating to the Daughter’s non‑refoulement claim, namely, that the Applicant and the Daughter would likely be seriously harmed and probably killed if they were returned to Vietnam, that internal relocation would be difficult as “My health is not good, I have to take care [of] my child” and there was “no guarantee” she could adapt to a new place and find a job to earn money and support herself. She also claimed that relocation “can be very dangerous” due to the “nationwide social network of gangsters and clandestine connections” with corrupt government and police. However, there was no reference to the Applicant’s claims as made in the Affirmation. The contents of the 2^nd Affirmation were also neatly typed and formatted and in English with a translation clause. They have therefore also clearly had the benefit of input from someone with legal training. At the oral hearing before me the Applicant also admitted that she had “asked somebody else to help me to lodge” the application in relation to her daughter.

8.  The application made in the 2^nd Affirmation was rejected by K.W. Lung DHCJ. on 14 February 2023, and a letter of that date was sent to the Applicant informing her of such decision (“February 2023 Court Letter”). There was no indication that the February 2023 Court Letter had been returned undelivered.

9.  As the Applicant had sought an oral hearing of her application, one was scheduled and she appeared at such on 26 May 2025. She acknowledged that she had filed an Affirmation with an explanation as to why she did not attend the April 2019 Hearing, and when I asked whether she had anything else to say in relation to the late filing of her leave application bearing in mind her duty of full and frank disclosure, she replied “It was quite long time ago. So I can’t recall, I could not recall what happened during that time. So I assume that I had received the decision from TCAB late. So that’s why I made this application late.” As she claimed she had not brought a copy of the Affirmation with her, I had a copy made and had the contents re-translated to her. It was only then that she added, in relation to her earlier answer, “So because I was too frightened and too stressed at that time and up to now, it was quite a long time ago. So that’s why I can’t recall exactly just now.”

10.  In relation to her application made in the 2^nd Affirmation, she claimed that she had not seen the February 2023 Court Letter, and hence had not been aware before the oral hearing that the application to amend the Form 86 had been rejected. She claimed that one possible reason she had not received the February 2023 Court Letter was that there was no mailbox for that address, so “it dropped somewhere or somebody took it. I’m not sure.” She also said that she had moved in or around May or June 2023.

11.  I did (and still do) not find the bare allegations regarding the February 2023 Court Letter convincing. However, as the Applicant had sought to involve a minor, I adjourned the hearing to 18 June 2025 so that she would have the opportunity to take legal advice and consider how and whether she wished to proceed in relation to her Daughter’s non-refoulement claim, and her own leave application. I told her that she should address me at the resumed hearing in relation to any steps that she had taken or would take in relation to her Daughter’s non-refoulement claim, and on her suggested approach in relation to the contents of the 2^nd Affirmation and her own application.

12.  At the resumed hearing the Applicant told me that while she had not taken any steps in relation to the Daughter’s non-refoulement case, she planned to find a lawyer to assist with lodging a separate application for her Daughter, and that she would do so as soon as possible after the hearing. She said that she would like to proceed with her application for leave, and asked me to take into account the information in and documents exhibited to the 2^nd Affirmation in relation to her own application as she said that they had more information to support her leave application. She had no further submissions to make in relation to her leave application.

Legal Principles

13.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers ( Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

14.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

15.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

16.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

17.  The application was filed more than 7 months after the TCAB Decision. I do not see any good reason, in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

18.  Dealing, firstly, with the merits of the substantive application, as the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

19.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

20.  The TCAB/NRCPO set the Applicant’s procedural history, the facts presented by the Applicant, and the nature of her claim (Paragraphs 1 to 21) before it moved on to the attempts to deal with the matter via the Hearing, and eventual paper disposal (Paragraphs 22 to 27), which I have summarised above. There was reference to extensive COI over the course of some 13 pages, and to the relevant general legal principles pertinent to the Appeal including as to burden and standard of proof, state acquiescence, state protection, and internal relocation (Paragraphs 29 to 34).

21.  While the TCAB/NRCPO concluded that (and gave reasons why) it had “good reason to cast doubt on the credibility of the Applicant” (Paragraphs 35 to 37), it nevertheless assessed the Applicant’s claims to each type of risk on the basis of the facts presented by the Applicant. In doing so, it dismissed Torture Risk on the basis that there was no public or official involvement or any acquiescence, and BOR 3 Risk and BOR 2 Risk on the basis that the Applicant’s evidence did not establish the requisite risk of harm or death, and as both effective state protection, and reasonable, safe and viable internal relocation were available on the facts. Persecution Risk was also dismissed due to the lack of a Convention reason and the source of harm. Given the failure to establish any of the pertinent types of risk, the Appeal was dismissed and the Director’s Decision was confirmed (Paragraphs 38 to 66).

22.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, state acquiescence and state protection, and internal relocation, which are all matters primarily within the province of the decision-making body, and hence Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

23.  I also do not, for reasons below, see that the Applicant’s case on the merits is improved by the claims made in her two Affirmations, her allegations at the oral hearing, or the exhibits to the 2^nd Affirmation.

24.  Firstly, I do not accept, and hence have not had regard to, the Applicant’s bare and unsubstantiated allegations in the Affirmation (as also belatedly relied on at the oral hearing) as to alleged events in Hong Kong, and their consequent effect on her as:

(1)  The underlying assertions are no doubt serious, and of obvious relevance to her underlying non-refoulement claim. Yet they have been only advanced as bare allegations unsupported by any documentation (let alone any which satisfies all of the conditions in Ladd v Marshall [1954] 1 WLR 1489), or conduct consistent with the existence of such state of affairs;

(2)  I also consider that there is also no good or credible reason or explanation before me for the absence of such underlying evidence, and that the Applicant’s conduct has been inconsistent with such a serious state of affairs. Given the seriousness and obvious relevance of such allegations, one would expect her to have raised and reported such issues to the Hong Kong police (and for there to hence be supporting documentation), or at least in support of her Daughter’s non-refoulement claim. A fortiori:

i.  When she had been living with the father of her daughter (“Father”) since 2018[8] and in the usual course of events would have been several months pregnant with her Daughter by the time she filed the Affirmation in April 2020; and

ii.  Given that her Daughter’s non-refoulement claim was filed on 9 April 2021, and the nature of the issues raised and canvassed before the TCAB/NRCPO at the January 2022 Hearing (including that the Daughter would remain with the Father if he were to allowed to stay in Hong Kong as a result of his non-refoulement claim).

Yet there is no evidence or indication that she has ever raised such issues with the Hong Kong authorities or in relation to her Daughter’s non-refoulement claim (including before the TCAB/NRCPO c.f. August 2022 Decision Paragraphs 3 to 34, 42 to 65). These circumstances are inconsistent with the existence of the alleged state of affairs.

(3)  Furthermore, and while the Affirmation contained these startling yet unsubstantiated claims, in the 2^nd Affirmation the Applicant blithely said (in support of her attempt to re-argue the issue of risk of harm) that “Because I was fortunately not murdered and was able to escape to Hong Kong, I was temporarily safe while still in Hong Kong. As for my child, she is too young, always following me, if I am in danger of being murdered, she is also at risk of being murdered” (emphasis added) before moving on to discuss perceived difficulties with internal relocation in Vietnam. Given the aforesaid context, I do not see or accept that the contents of the 2^nd Affirmation are consistent with the allegations in the Affirmation, and I do not accept the Applicant’s bare and belated excuse given to me at the end of Paragraph 9 above.

(4)  A fortiori (and although it is unnecessary for me to decide the matter on this basis) when the contents of the Form 86, the Affirmation, and the 2^nd Affirmation have clearly had the benefit of input from someone with legal training, and who would have known of the duty of full and frank disclosure.

25.  Secondly, I do not see how the August 2022 Decision assists the Applicant in relation to the merits of her leave application, given that in the August 2022 Decision the TCAB/NRCPO had rejected the Daughter’s non-refoulement claims due to its (i) Rejection of the Applicant’s evidence (as given on behalf of her Daughter at the January 2022 Hearing), which found it to be “incredible and unreliable” (Paragraphs 26 to 34, 42 to 67, 103); and (ii) Conclusions based on the evidence and COI that both effective state protection and internal relocation were available.

26.  Finally, I do not accept the bare and unsupported allegations (including as to her health and job competitiveness) in the 2^nd Affirmation. Nor I do see that they are relevant to the present application particularly when they are attempts to re-argue the issues of risk of harm and internal relocation as determined in the August 2022 Decision, in circumstances where the latter is not the subject of any application for leave before me and when no grounds for judicial review of such have been identified. If she intends to claim that there has in fact been a significant change of circumstances or new information relevant to her own non-refoulement claim, that may be relevant to the procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap. 115). But that would not be relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

27.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

28.  Secondly, there has been an undue delay in this case of over 7 months, for which there is no credibly valid or acceptable explanation given that (i) For reasons above, I do not accept the Applicant’s evidence as to why she apparently moved; and (ii) Even if she had in fact moved, she was under a duty to notify the TCAB/NRCPO of any change in address, and the consequence of any delay occasioned by the ineffectiveness of her address falls on her shoulders (s. 37ZA Immigration Ordinance (CAP. 115); Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).

29.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.

Conclusion

30.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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