HA KY DUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 956/2020

[2025] HKCFI 1957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 956 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 March 2019”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Immigration Department dated 14 March 2019.

2.  However, the Immigration Department did not make any decision on 14 March 2019. It is clear that the applicant was referring to the decision of the Torture Claims Appeal Board ("the Board") dated 14 March 2019 (“the Board’s Decision”), as the applicant annexed a copy of the Board’s Decision to his supporting affirmation dated 21 April 2020. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000956_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant failed to establish a case for non-refoulement protection on any of the available grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal against the 2 decisions of the Director of Immigration (“the Director”) dated 22 July 2016 and 4 May 2017 respectively and confirmed the Director’s said decisions.

Amendments

4.  The applicant wrongly named “Immigration Department” as the putative respondent and did not name any putative interested party in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

5.  Also, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 14 March 2019”.

Late application

6.  By virtue of 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, ie when the Board’s Decision was made.

7.  However, the applicant filed Form 86 on 21 May 2020, which is more than 14 months after the Board’s Decision (made on 14 March 2019). The applicant was hence late for more than 11 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. A delay of more than 11 months is substantial, and there is no justification for the delay when no explanation was given. There is also no merits of the intended judicial review as discussed below.

10.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

12.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

13.  In sum, the applicant claimed for non-refoulement protection because he would be at risk of being harmed or killed by his father’s creditor if returned to Vietnam, as he was unable to repay his father’s loan to the creditor and refused to transfer the family farmland to the creditor as part-payment.

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 8 May 2025.

15.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

16.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  However, the applicant failed to identify any ground for judicial review in Form 86, nor in his supporting affirmation. The applicant annexed a letter dated 19 April 2020 to his supporting affirmation, but he merely stated in the letter that he had decided to apply for judicial review against the Immigration Department’s earlier decision because his life would be in very dangerous situation if he returned to Vietnam. He also alleged that he had borrowed a large sum of money from gangster related friends. Although it was risky, he had faith in his business venture at that time. However, the business failed and he was not in any position to repay the principal and interest. He further alleged that if he were to return to Vietnam, the creditors would find and kill him as a warning and example to others, as they killed other people before for the same reason.

Discussion

19.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

20.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decisions, as the Director’s decisions were superseded by the Board’s Decision and are no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022).

21.  In assessing the applicant’s appeal, the Board held an oral hearing on 31 January 2019. The applicant was given the chance to present his case and grounds of appeal to the Board in person. The Board found that the applicant’s alleged injuries did not require major medical treatment and there was no evidence of “severe pain and physical or mental suffering reaching the minimum level of severity on the duration of treatment, its physical or mental effects”. Thus, the Board concluded that the applicant did not suffer any “serious ill-treatment or serious harm” or had a “well-founded fear” for him to establish a claim on any of the applicable grounds under the USM.

22.  Moreover, the Board found the applicant unreliable, as the Board was not satisfied as to why in the absence of severe ill-treatment, the applicant chose to leave Vietnam for Hong Kong. The Board also found that the applicant’s unreasonable delay in raising his claim cast doubt on the veracity of his claim. In the two months after sneaking into Hong Kong illegally, he did not raise any claim, despite ample opportunities to do so. He raised his claim only after being arrested. Thus, the Board called into question his true motive of coming to Hong Kong.

23.  As to state protection, the Board found from various pieces of country of origin information that the Vietnamese government was taking steps to fight corruption and crack down illegal loan sharks. The Board concluded that reasonable state protection was available should the applicant need it upon his return.

24.  In assessing the viability for internal relocation for the applicant, the Board noted that the applicant had stayed away from his home area for 2 years without being found or harmed before he left Vietnam. Further, the Board found it unlikely that the creditors had the resources and manpower or willingness to find the applicant in a vast, densely populated country, especially when the applicant was impoverished. There are many places in Vietnam other than the applicant’s home area where the applicant, as an able-bodied young man with work experience, could safely relocate without undue hardship.

25.  The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, since the finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

26.  Furthermore, what the applicant stated in the letter annexed to his supporting affirmation in respect of the background of the loan was substantially different to what he previously told the Board. In the letter, he said he himself was the debtor whereas he told the Board that his father was the debtor. This confirms the Board’s finding that the applicant is not a reliable witness.

27.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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