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

HCAL 1062/2022

[2026] HKCFI 4284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1062 of 2022

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

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 10 October 2022, 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 27 September 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 8 February 2022 (“Director’s Decision”) 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/2022/HCAL001062_2022_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Board as well as the Director as the proposed respondents and did not name any proposed interested party. As the Board should have been the proper putative respondent and the Director the proper putative 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 to Vietnam, he would be harmed or killed by the 7 creditors for the outstanding loans owed to them. 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.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 July 2026. The applicant attended the hearing in person, and stated that he had nothing to say.

Discussion

5.  The leave application operates as a ‘filtering’ process. 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.  In his Form 86, the applicant averred that the Board’s Decision was unsafe and unreliable. In the supporting affirmation, no such grounds were provided.

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 applicant was late for almost 4 months when he filed the NOA. Pursuant to s.37ZT of the Immigration Ordinance[5], the Board determined, as a preliminary decision, whether to allow the applicant’s late filing of the NOA. After it had considered the applicant’s purported explanation for the delay alleging that when he received the Director’s Decision, the time limit for the appeal almost expired and that Covid broke out, the Board did not accept that the applicant had exercised all due diligence to file the NOA within the specified period and that he had failed to do so because of circumstances beyond his control. The Board refused the late filing of the appeal against the Director’s Decision. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Repealed provisions under the previous s.37ZT

8.  Before 1 August 2021, the previous provisions under s.37ZT (2)(b) mandated the Board to take account of “any other relevant matters of acts within the knowledge of the Board”.

9.  Additionally, s.37ZT (3) provided that the Board “may allow the late filing of the notice of appeal” if it is satisfied that “by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal”.

10.  However, s.37ZT (2)(b) was repealed. Section 37ZT (3) was replaced by the new 37ZT (3) as follows:

“The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in wri6ting to satisfy the Board that the person -

(a) had exercised all due diligence to file the notice within the period specified … but

(b) failed to file the notice within the period because of circumstances beyond the person’s control”

11.  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 under s.37ZT and observed a high standard of fairness. The only averments in the applicant’s Form 86 were general and vague. 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[6].

Orders

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

10.  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