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HCAL 421/2021
[2026] HKCFI 584
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 421 of 2021
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BETWEEN
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Duong Thi Luong |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- 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 23 March 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 20 February 2018 (the “Board’s Decision”).
2. In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whilst the Director of Immigration (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 had previously applied for leave to apply for judicial review in respect of the Board’s Decision in HCAL 1402 of 2018. However, the said application was subsequently withdrawn without adjudication. The Practice Master accordingly allowed the present Leave Application to proceed.
4. 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 in the letter dated 2 October 2025. As the Notice of Hearing was not issued to the address provided by the Applicant on the Form, the Court directed another hearing and that the notice of such hearing should be issued to both the address stated on the Form as well as the address provided by the Immigration Department.
5. A new hearing was scheduled on 12 January 2026 and the Applicant attended in person. At the hearing, the Applicant said she wants to stay in Hong Kong. She further explained that there was delay in making the Leave Application because she was imprisoned in 2018 and 2019 for illegally working in Hong Kong. She said she was released in or about October 2019. Save as aforesaid, the Applicant said had nothing to say in respect of the Leave Application.
Background
6. 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[1] is included below for reference.
Discussion
7. The Board’s Decision was issued on 20 February 2018. The Form was however only filed on 23 March 2021. The Leave Application was accordingly filed significantly out of time for over 2.5 years.
8. No application for extension of time has been made by the Applicant.
9. 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.
10. In the present case, the delay was very substantial. In the Form and in the supporting Affirmation, the Applicant did not provide any explanation for the delay. At the hearing on 12 January 2026, the Applicant said the delay was due to her being imprisoned at the relevant time. However, the Applicant said she was released in or about October 2019, and there is no explanation as to why she could not make the Leave Application immediately after her release. In any event, I do not accept that the Applicant could not make any necessary arrangement to file the Form even at the time when she was imprisoned. In the premises, I find that there is no satisfactory explanation for the substantial delay.
11. 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.
12. 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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
13. The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant repeated her case before the Board, and said her creditor has threatened to kill her and her family if she does not settle the debt.
14. 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 claim based on the evidence and the reasons provided (§§23-48 of the Board’s Decision). 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.
15. 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
16. 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 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. In the premises, I make an order that the Form be amended as stated above and the Leave Application be dismissed.
Dated the 4th day of February 2026
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(Annson Cheung)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 4 February 2026
Duong Thi Luong
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 February 2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6526/17/3/181/V1073
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 83/17
(Formerly RBCZ/11957/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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