|
HCAL 2310/2020
[2025] HKCFI 5038
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2310 of 2020
|
BETWEEN
|
| |
Ngo Quang Chien |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 K.W. Lung:
1. The extension of time for the application for Judicial Review be refused.
2. The application for leave to apply for Judicial Review be dismissed
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 3 January 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 3 April 2020. His application was filed on 24 November 2020, which is late more than 7 months. This issue will be dealt with below.
2. The applicant did not ask for a hearing.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Vietnam. He is an illegal immigrant as he sneaked into Hong Kong by boat on 15 December 2015. He lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed 2.1 billion VND for his restaurant business, which failed. He was unable to repay his loan. The creditor and his subordinates had attacked him on 3 occasions, causing injuries to him. He was scared and decided to flee Vietnam.
5. Details of the applicant’s story can be found in the Board’s Decision. See hyperlink.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002310_2020_files/the_Board's_Decision.pdf
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. The Director, by Notice of Decision dated 6 March 2017, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) The creditor did not have the intention of harming or killing him. He had only intended to pressure him to pay the loan. [37]
(2) The ill-treatment on the applicant did not attain the high level of severity under BOR 3 risk. [39]
(3) This was a private monetary dispute without any involvement of the state. [41] & [47]
10. For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 24 November 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant said that the Board’s Decision is unjust, without stating any reason in support.
DISCUSSION
13. As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”
16. The reason stated under paragraph 12 is only the applicant’s bare assertion. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.
17. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 3rd day of November 2025
| |
(Alfred Chan))
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 3/11/2025
Ngo Quang Chien
Applicant’s ref. no:
Nil. |
|
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 3/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 6582/17/3/237/V1095
Director of Immigration
Putative Interested Party’s ref. no.: INVN/40/2016, INEC 2807/2020
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1]. Delay in applying for relief (O. 5 3, r. 4)
(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. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
|