NGUYEN VAN QUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1443/2020

[2025] HKCFI 4758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1443 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.

2.  There shall be no time extension for the late filing of the applicant’s Form 86.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 10 July 2020, 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 29 November 2018 (“Board’s Decision”) dismissing the applicant's appeal against two decisions of the Director of Immigration (“Director”) dated 22 July 2015 (“Early Decision”) and 6 December 2016 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001443_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named “TCAB and Immigration Department” as the proposed respondents, and provided an address as the interested party. As the Board should have been the proper respondent and the Director 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, he would be harmed or killed by the 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.[1] 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[2], 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.[3] In the present case, the Board found that the applicant’s evidence incredible. The Board concluded that he would not face any real risk of harm if refouled especially that the alleged past ill‑treatment was not serious. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to extend time for the late application

9.  Another matter I need to consider is the delay. 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 grounds for the application first arose. After taken into account the General Adjournment of Proceedings from 29 January to 3 May 2020 due to COVIE-19 [5], I believe that the applicant was late for nearly 1 year. It is a very lengthy and substantial delay. Good reason shall be shown to explain for the inordinate delay.

10.  The applicant however has provided no explanation at all for the delay. Having regard to the lack of merits, I refuse to grant any time extension to the applicant to file the Leave Application out of time.

Order

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

12.  There shall be no time extension for the late filing of the applicant’s Form 86.

13.  The applicant’s application for leave to apply for judicial review 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