TRAN VAN HAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1149/2021

[2026] HKCFI 2286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1149 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

2.   There shall be no extension of time granted to the applicant for the filing of the Form 86.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 16 August 2021, 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 12 January 2018 (“Board’s Decision”) dismissing the applicant's appeals against the decisions of the Director of Immigration (“Director”) respectively dated 28 April 2016 and 4 July 2017 (“Director’s Decisions”) rejecting the applicant's non‑refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001149_2021_files/the_Board's_Decision.pdf

2.  The Director’s Decisions and the Board’s Decision were both concerned with the joint applications made by the applicant and his wife.  However. the applicant is the only party in the Leave Application.

3.  In the Form 86, the applicant provided the case number of his non-refoulement claim as the proposed respondent and stated his address as the interested party.  As the Board should have been the proper respondent, and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

4.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor who was a member of the Black Society.  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.

Discussion

5.  A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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[3], 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 no such grounds.

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.[4]  In the present case, the Board found that the applicant had fabricated his case.  It found that the applicant had never been inflicted with any pain or suffering by the creditor and the members of the Black Society.  Hence, it concluded that the applicant would not be subjected to risks of harm if refouled.  It further found that internal relocation would be reasonably viable.  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 advanced no grounds at all 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[5].

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 of the Board’s Decision. The applicant was late for more than 4 months, which is not short.  In the absence any explanation for the delay and the lack of merits of the intended challenge, I’d be disinclined to grant leave for extension of time.

Recent removal

10.  The court was recently informed that the applicant was removed.

Orders

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

12.  There shall be no extension of time granted to the applicant for the filing of the 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