BUI VAN THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3564/2019

[2025] HKCFI 1704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3564 OF 2019

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 oral submissions by the Applicant 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 adding the Director of Immigration as the Putative Interested Party.

2.  No extension of time be granted for the application for leave to apply for judicial review and the application herein be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 2 December 2019, the Applicant applies for 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 3 July 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 1 September 2016 (“the Director’s Decision”), which rejected his non-refoulement claim on grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  In Form 86, the Applicant has incorrectly named both the Board and the Immigration Department as the proposed respondent and referred himself as the proposed interested party. I have amended Form 86 on my own motion to correct these.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be killed by his creditor in Vietnam, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I will adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  Order 53, rule 4 of the Rules of the High Court requires that:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  The Leave Application in this case is made out of time.

6.  I am not prepared to extend time for the Applicant to apply for leave to apply for judicial review. Section 21K(6) of the High Court Ordinance (Cap. 4) empowers the Court to refuse to grant leave for making an application for judicial review or any relief sought if it considers that there has been an undue delay in making the application. I have also reminded myself of the relevant legal principles set out by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 and by G Lam J (as he then was) in Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1.

7.  First of all, the Applicant does not even see fit to apply for extension of time, nor has he explained the delay. It is of importance that a disciplined approach be taken in applications for judicial review of this kind, or else public administration will be unduly disrupted.

8.  More importantly, I am not in any event satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all (and would have dismissed the Leave Application even if time were extended): see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676:

(1)  Having considered the Board’s Decisions with rigorous examination and anxious scrutiny as required by law, I do not find, nor has the Applicant been able to demonstrate, any error of law or procedural unfairness, or any failure on the Board’s part to apply high standards of fairness in its consideration of his non-refoulement claim: see Re Zunariyah (supra) at §22.

(2)  The Applicant has not identified any specific grounds in support of his intended judicial review: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142. His supporting affirmation also lacks substance.

(3)  The Board concluded, after going through all the evidence adduced by the Applicant and applying the relevant law and legal principles relating to the issues and the Grounds, that he had failed to make out his case of Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk. The assessment of the COI materials, risks of harm, state protection and viability of internal relocation, etc. was clearly within the province of the Board.

(4)  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.

9.  On the question of prejudice, it must be appreciated that there are two sides of it. It is inappropriate to focus only on the prejudice to the Applicant if time is not extended, without having proper regard at the same time for the prejudice to be resulted to public administration if the Leave Application were allowed to proceed out of time in the present circumstances as described above.

Conclusion

10.  For these reasons, I refuse to extend time for the Applicant to apply for leave to apply for judicial review. This being the case, the Leave Application is out of time and falls away.

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