VU VAN GIANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 670/2023

[2026] HKCFI 4848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 670 of 2023

Application for Leave to Apply for Judicial Review

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

1. There shall be no extension of time to the applicant to file the Leave Application out of time,

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

Observations for the Applicant:

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 8 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 30 July 2019 rejecting (“Director’s Decision”) the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

2.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by a triad organization and its members.  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.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 18 August 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 17 July 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

4.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[3] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], 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 Director was unreasonable and procedurally unfair by placing too much reliance on the COI without taken into account his personal background. The supporting affirmation provided no grounds at all.

6.  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.[5]  In the present case, the applicant withdrew his appeal against the Director’s Decision to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”). By a letter dated 25 July 2022, the Board stated that it was satisfied that the applicant made the withdrawal application freely, and that the applicant understood the consequences of the withdrawal. It also considered that there was good reason for the applicant to make the withdrawal application as the applicant considered it was safe for him to return home.

7.  The intended challenge in the Leave Application was against the Director’s Decision, which had been determined by the letter of the Board referred to above. The issue of whether an appeal to the Board has been validly withdrawn is a jurisdictional matter for the Board to determine: Hussain Tasawar v Betty Kwan (Adjudicator)[6].

8.  In the circumstances, the Leave Application against the Director’s Decision is procedurally wrong, and is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[7].

Whether to grant extension of time

9.  More importantly, there is a delay of in the filing of the Leave Application. 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 grounds for the application first arose. This application against the Director’s Decision was late for more than 6 months and is late for about 4 years. If it is against the Board’s Decision. A good reason for the delay shall be required.

10.  The applicant provided no explanation at all for the delay. In the absence of reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time.

Order

11.  There shall be no extension of time to the applicant to file the Leave Application out of time,

12.  The applicant’s application for leave to apply for judicial review is 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