HOANG HAI LINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2140/2023

[2025] HKCFI 3114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2140 OF 2023

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 / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 26-year-old national of Vietnam who entered Hong Kong illegally on 6 July 2021 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Quang Ninh, Vietnam. After leaving school he worked as a delivery man and a company clerk to make his living in his home district.

3.  In late 2020 he started his own garments selling business with the help of a loan borrowed from a local money-lender repayable within 3 ½ years with monthly interest payments which he initially managed to make from his business income.

4.  However, his business did not fare well, and by April 2021 he started to default with his loan repayments that his creditor sent men to threaten him, and after being beaten by those men on 2 occasions that the Applicant became fearful for his life and fled to Hanoi to hide in a friend’s place, and on 30 June 2021 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 December 2021 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 17 January 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between his and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

7.  On 3 November 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was filed outside the 14-day period from the receipt of the decision required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal by taking account only of the statement of reasons stated for the late filing and their supporting evidence.

8.  By a decision[1] dated 19 July 2023 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that his notice of appeal was filed more than 9 months late, that the delay was substantial and inordinate, that his stated reasons due to the outbreak of the Covid-19 pandemic, that the Chinese New Year was approaching at the time, that his father had passed away, and that he was suffering from mental problem and depression were either irrelevant or unsupported by any reliable evidence and not acceptable to justify such serious delay, and that it was not satisfied that he had exercised all due diligence to file his notice of appeal within the required period as specified but failed to do so due to circumstances beyond his control as provided under Section 37ZT (3) of the Ordinance.

9.  On 30 November 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from the killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.  By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 19 November 2023 after discounting the month of August for courts vacation, the Applicant was therefore some 11 days late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, while a delay of 11 days may not be considered as substantial or inordinate, for which he however did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 19 July 2023 to his then reported address which is the same as stated in his present application without being returned through undelivered post, I am unable to see any good or valid justification for his delay.

13.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was based on some private monetary dispute between him and his creditor only without any official involvement or political element, and above all that his late appeal was rightly refused by the Board upon his failure to satisfy the Board that he had exercised all due diligence to file his notice of appeal within the specified period but failed to do so due to circumstances beyond his control under Section 37ZT (3) of the Immigration Ordinance. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or are relevant to his application, I do not find any of them reasonably arguable for his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

15.  In the Applicant’s case, the Board rightly refused to allow the seriously late filing of his notice of appeal for the thorough and detailed analysis and reasoning set out in its decision in accordance with the law stands since August 2021 as amended, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the decision of the Board.

16.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim which even if real is a localized monetary dispute between him and his creditor only without any official involvement that state protection would be available to him, while it is also not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s claim or the Board’s decision not to allow the late filing of his appeal.

18.  Moreover, the Applicant recently on 28 April 2025 in writing requested to withdraw his application as he stated that it is now safe for him to return to his home country.

19.  In the premises, as I am for the given reason not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

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