TRINH VAN TRUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2802/2019

[2025] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2802 of 2019

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 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 24 September 2019, 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 23 May 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 January 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

3.  In the Form 86, the applicant named both the Board and the Director as the proposed respondent(s) and proposed interested parties. As the Board should have been the proposed respondent and the Director the proposed interest party, this court amend the Form 86 on its own motion.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Vietnam. He claimed that he departed Mong Cai, Vietnam on 15 March 2017 by boat to Dongxing, Guangxi before boarding a bus for Shenzhen. On 19 March 2017, he came to Hong Kong illegally by speedboat, and was arrested by police who handed the applicant over to the Immigration Department. On 9 June 2017, the applicant raised a non-refoulement claim, which claim the Director considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The basis of the claim was that he was underemployed in Vietnam. He became homeless after his deceased parents’ land was confiscated, and was unable to support himself. He came to Hong Kong to seek a better life.

6.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.  The Board decided that the appeal could be determined on paper without a hearing.

8.  The Board found that since the reason behind the applicant’s departure for Hong Kong was to seek a better life; there was no real risk of harm under the applicable grounds of the non-refoulement claim. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.

11.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. All the applicant said was the he was advised to file the present application in order that he could remain in Hong Kong longer.

12.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence with reference to the applicable law. It found that based on the applicant’s account, there was no real risk of harm under any of the grounds for non-refoulement. These are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

15.  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. Hence, the deadline for the filing of the Leave Application was 22 August 2019, and this application is late for about 1 month. When the applicant was asked to provide the reason for the delay, he stated that he was detained in the Pik Uk Correctional Institution at the time when he received the Board’s Decision. He did not know what to do. It was only after he was released and transferred to the Castle Peak detention center was he able to find someone to help him complete the Leave Application.

16.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. Whilst I do not consider a delay of 1 month substantial, I am not satisfied with the applicant’s explanation for the delay. The address stated in the covering letter of the Board’s Decision confirmed the applicant’s account that he was indeed in Pik Uk at the time when the Board’s Decision was sent to him. However, the applicant was unable to submit any evidence as to the date he was released from Pik Uk. In the circumstances, I consider his explanation as a bare assertion. Having taking into consideration of the little prospect of success of the intended challenge, I am disinclined to allow the extension of time.

17.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

18.  The Form 86 is amended on the court’s own motion.

19.  The Leave Application 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