VIEN DINH TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 622/2023

[2026] HKCFI 3096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 622 of 2023

Application for Leave to Apply for Judicial Review

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

Following:

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.

Observations for the Applicant:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 27 April 2023, 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 18 April 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 13 September 2021 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

            https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000622_2023_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party.  As the Board should have been the putative respondent and the Director the 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 creditor and his henchmen for an outstanding loan.  The 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.  Pursuant to the applicant’s request for hearing, the court scheduled a hearing on 28 April 2026.  Before the scheduled hearing, on 23 April 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (3) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application.  A copy of the applicant’s signed handwritten letter in English dated 14 April 2026 was also enclosed.  In the letter, the applicant stated that he would like to withdraw the Leave Application as the issues at home had been resolved and that he wanted to go home as soon as possible.  The applicant was also absent from the scheduled hearing.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  A leave application operates as a ‘filtering’ process.  Hence, 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 the applicant’s Form 86, the applicant averred that the Board had acted unreasonably and that the Board’s Decision was procedurally unfair.  The supporting affirmation provided no such grounds.

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’s appeal to the Board was late for 16 months.  The applicant’s explanation for the delay was that since he did not know English or Cantonese, he had to wait until his friend was free to help him file the appeal.  After the Board had considered the applicant’s stated reason, it found that the applicant’s given reason had missed out all important evidence to explain for his delay.  Hence, the Board was not satisfied that the applicant (a) had exercised all due diligence to file the notice of appeal under s.37ZS (1) of the Immigration Ordinance; but (b) failed to file the notice of appeal within the period because of circumstances beyond his control.  The Board therefore refused the applicant’s late filing of his Notice of Appeal.  These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds as well as the provisions under s.37ZS and observed a very high standard of fairness.  The applicant’s grounds stated in the Form 86 did not relate to the Board’s reasons for refusing his late filing of the appeal.  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 any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

9.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

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

11.  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