NGUYEN DUC TIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1477/2020

[2025] HKCFI 3432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1477 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended on the court’s own motion as follows:-

(i)    the name of the Putative Respondent be amended to the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office; and

(ii)   the Director of Immigration be named as the Putative Interested Party.

2.   Extension of time to file the application for leave to apply for Judicial Review be refused.

3.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 14 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 2 July 2019 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is normally the case that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

Background

3.  The Applicant is a national of Vietnam.  His detailed personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.  In short, the Applicant claims that he will be seriously harmed or killed by alleged creditors of his parents (the “Adversaries”) if he returns to Vietnam.

This Leave Application is out of time

1.             Pursuant to Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the Applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made.  The Leave Application was filed about 9 months out of time.

2.             In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

3.             In the present case, the delay of about 9 months is serious and substantial.  No explanation has been proffered in the Form 86 or the supporting affirmation.  When asked at the Hearing, the Applicant asked me to consider allowing his late filing.  He claimed that he was not aware of the Board’s Decision as he had moved to live with a friend and did not check his old mailbox.  Even if the Applicant’s explanation is truthful, I do not consider this to be a good explanation:-

(1)  Under s. 37ZV of the Immigration Ordinance (Cap 115) (the “Ordinance”), the Board’s Decision (which was sent to the Applicant’s then residential address on 2 July 2019) is deemed to be served on the second working day after the document was sent.

(2)  Further, the Applicant is under an express duty pursuant to s.37ZA(2) of the Ordinance to notify the Board in writing of any change to his residual address.

Merits

4.  In a judicial review, this court does not act as a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision‑makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524, §14(1)).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In the Form 86 and the affirmation filed in support of the Form 86, the Applicant only made a bare assertion that his life is in danger and did not point to any error of law, procedural unfairness or irrationality of the Board Decision.

6.  At the Hearing, the Applicant confirmed that he had nothing to add to his Leave Application.

7.  The Board’s Decision is comprehensive.  Looking at the Board’s Decision, all the available evidence was before the Board (§§10-12, 21), as well as Country of Origin Information (§§38-43), and after careful analysis (§§29-37) the Board came to the conclusion that the Applicant’s core factual allegations were not made out (§§51-58).

8.  The Board then proceeded to analyse each of the applicable grounds under the Unified Screening Mechanism, identifying in each instance the correct legal principles (§§16, §§22-24, 59-82) and came to the conclusion that none was made out (§§90-93).  Further, the Board concluded that internal relocation was available to the Applicant in any event (§§83-89).

9.  To conclude, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision, despite rigorous examination and anxious scrutiny.  

10.  In the circumstances, I do not see any reason to grant a time extension.

Conclusion

11.  For the above reasons, I refuse to grant a time extension.  Leave is accordingly refused.

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

[1]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001477_2020_files/the_Board's_Decision.pdf