DINH CHINH PHIET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 872/2021

[2026] HKCFI 804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 872 of 2021

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.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 June 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 15 January 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 15 October 2020 (“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/2021/HCAL000872_2021_files/the_Board's_Decision.pdf

2.  Notwithstanding that the Director’s Decision and the Leave Application were both prepared in Chinese, this court finds it convenient to render the decision in English as the Board’s Decision is in the English language.

3.  In the Form 86, the applicant named the Board the interested party in addition to it having been named the proposed respondent. As the Director should have been the proper interested party, the Form 86 will 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 and the henchmen. 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.

5.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 27 January 2026. The applicant appeared in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  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.

8.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. Despite having been reminded that he had provided no written grounds, the applicant stated that he had nothing to say.

9.  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 determined the applicant’s appeal without holding an oral hearing. It accepted the applicant’s assertions on the primary facts but found that the applicant would not be at risk if refouled. This was because the Board found that the past ill-treatment did not meet the requisite level of severity. It further found that both state protection and internal relocation were reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  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. I am not satisfied that the applicant has 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].

Whether to extend time for the late application

11.  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 when the Board’s Decision was delivered. The applicant was late for about 2 months.

12.  At the hearing, the court asked him to provide an explanation for the delay. The applicant stated he could not recall the reason for the delay.

13.  Whilst I do not regard the delay as substantial, the applicant shall still be required to provide reason for the delay, and he could provide none at all. This, coupled with the lack of good prospects of success in his intended challenge, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Order

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

15.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

16.  The 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