NGUYEN THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 134/2021

[2026] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 134 of 2021

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.  The application for extension of time to apply for leave to apply for judicial review be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 5 February 2021 (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 4 January 2018 (the “Board’s Decision”). The Applicant also asked for extension of time to make the Leave Application.

2.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 27 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant in advance at the address provided by the Immigration Department on 2 October 2025. As the Notice of Hearing was not issued to the address provided by the Applicant to the Court, the Court directed another hearing and made an order that the new Notice of Hearing should be sent to both the address provided by the Immigration Department and the address provided by the Applicant to the Court on the Notice of Change of Address dated 17 February 2021.

3.  The new hearing took place on 12 January 2026. Notice of the said hearing was issued in accordance with the directions above. On 9 January 2026, attempt was made to contact the Applicant by phone at the number provided by the Immigration Department on 5 January 2026 but in vain. The Applicant did not attend the hearing. As proper notice had been given to the Applicant in respect of the hearing, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

4.  The Applicant’s background, the basis of her claim and the arguments she 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 is included below[1] for reference.

Discussion

5.  The Board’s Decision was issued on 4 January 2018. The Form was however only filed on 5 February 2021. The Leave Application was accordingly filed significantly out of time for almost 3 years.

6.  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.

7.  In the present case, the delay was very substantial. In the Form and in the supporting Affirmation, the Applicant stated that she has been detained at Tai Lam Centre for Women since 14 January 2021. She claimed that she never received the Board’s Decision until “recently” (by reference to the time of making the supporting Affirmation, i.e. 20 January 2021), and she immediately took out the present application upon receipt.

8.  I do not accept the Applicant’s explanation. The fact that she has been detained since 14 January 2021 is not an explanation as to why she did nothing between 4 January 2018 and 14 January 2021. As regards the Applicant’s allegation that she did not receive the Board’s Decision earlier, it is no more than a bare assertion with no documents in support. The Applicant has not explained how she came to receive the Board’s Decision eventually. I note that the Board’s Decision was issued to the address provided by the Applicant on the Notice of Appeal/Petition Non-refoulement Claim filed on 17 February 2017.

9.  Notwithstanding the absence of satisfactory explanation for the substantial 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 of Immigration (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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

11.  In the Form and in the supporting Affirmation, the Applicant only stated that the Board had underestimated the injuries and cruel treatment she had suffered in Vietnam. No other grounds have been provided in support of the Leave Application.

12.  I have considered the Board’s Decision in detail. 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’s Decision was comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on the evidence and the reasons provided. In particular, the Board had duly considered the alleged injuries suffered by the Applicant in Vietnam and concluded that the injuries were not serious (§§24 & 30 of the Board’s Decision). The Board was entitled to come to such finding based on the evidence and I do not see any errors committed by the Board in this regard. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

13.  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.

Conclusion

14.  As the Form was filed significantly 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 refuse to grant the extension of time sought. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above. In the premises, I make an order that the application for extension of time be refused 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