LE, THI DUNG v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 600/2020

[2025] HKCFI 3064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 600 of 2020

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 the Applicant being absent in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and identifying the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 24 November 2017 as the Judgment, order, decision or other proceeding in respect of which relief is sought;

2.   Application to withdraw the application for leave to apply for Judicial Review be granted; and

3.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 dated 20 March 2020 but filed on 14 April 2020 (“Form 86”), and a supporting affirmation dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave for judicial review.

2.  The Form 86 as filed identified the Judgment, order, decision or other proceedings in respect of which relief is sought as “20 February 2016. DISMIS(sic) HEARING DISMISSED MY APPEAL BY TORTURE CLAIMS AP-BOARD DISMISSED MY PETITION SEEKING JUDICIAL REVIEW”. The Affirmation seeks “LEAVE TO APPLY FOR JUDICIAL REVIEW FOR MY NON-REFOULEMENT CLAIMS DECISION AGAINST THE DIRECTOR OF IMMIGRATION” and nothing is exhibited thereto.

3.  Neither the Form 86 nor the Affirmation set out any grounds for judicial review.

4.  There was no hearing before or decision of the Director of Immigration (“Director”), the Torture Claims Appeal Board (“TCAB”), or the Non-Refoulement Claims Petition Office (“NRCPO”) relating to the Applicant on 20 February 2016. Rather:

a.  The Director in a decision dated 29 April 2016 (“Director’s Decision”) rejected as not substantiated the Applicant’s non-refoulement claims on “all applicable grounds”, specifying in particular Torture Risk[1], BOR 3 Risk[2], and Persecution Risk[3].

b.  On 10 May 2017, the Applicant petitioned to the TCAB;

c.  Before the TCAB could hear the petition, and as the Applicant did not (as invited by a letter from the Director dated 12 July 2017) submit additional facts relevant to non-refoulement on BOR 2 Risk[4], her claim on BOR 2 Risk was assessed by the Director who, by a decision dated 1 August 2017 (“Director’s Further Decision”), concluded that the Applicant had failed to establish BOR 2 Risk if she were refouled. As per the procedure in the letter dated 12 July 2017, the TCAB/NRCPO was to hear the appeal/petition on all applicable grounds (i.e. Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk) in one go, there being no need to file a separate and further petition to the NRCPO;

d.  The TCAB/NRCPO decided to determine the appeal/petition on the basis of Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk in one go at the hearing before it on 22 September 2017, having regard to the Notice of the Director’s Further Decision having been received no less than 14 days before the date for the TCAB/NRCPO’s hearing, and as the Applicant had not filed further documents to support her claim on BOR 2 Risk; and

e.  However, the Applicant did not attend the hearing on 22 September 2017. She also did not respond to a letter sent to her inviting her to give (on or before 29 September 2017) an explanation for such. Thereafter, the TCAB/NRCPO rejected all of the Applicant’s claims for non-refoulement relief in its decision dated 24 November 2017 (“TCAB Decision”)[5].

5.  The Applicant sought an oral hearing of her leave application. However, she did not appear at such. I have hence proceeded to deal with her application on the papers.

6.  In the circumstances, and given also the two-tier system set out in Moshsin Ali [2018] HKCA 549, it appears to me and I take it that the Applicant sought leave to judicially review the TCAB Decision. I do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision, or the Director’s Further Decision. However, if and insofar as she apparently seeks such leave, that application stands only to be rejected, and I do so, given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

7.  I have hence amended the Form 86 of my own motion and as set out above to reflect the identities of the putative respondents and putative interested party, and that the TCAB Decision is the decision in respect of which leave is sought.

Background

8.  I have summarised above the procedural history of the matter. The TCAB Decision (Paragraphs 1 to 16) also contains the Applicant’s background and case as to the incidents underlying her claim non-refoulement relief and her immigration history. For present purposes, the Applicant’s claim for non-refoulement relief on the basis of Torture Risk, BOR2 Risk, BOR3 Risk, and Persecution Risk stems from the apparent risk of being harmed or killed by one Nguyen Van Thanh (“Nguyen”), who had advanced a loan to the Applicant (“the Loan”) and was hence her creditor.

9.  As I have mentioned, no grounds for judicial review are set out in the Form 86 or the Affirmation. Nor has the Applicant advanced any explanation before me for her lengthy delay in filing the Form 86 and the Affirmation.

Legal Principles

10.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

11.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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 TCAB/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

12.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA14, at §23).

13.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay (iii) the merits of the substantive application (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at paragraphs 43 to 45 as also cited in AW), and H v Director of Immigration (2020) 23 HKCFAR 248 at paragraphs 17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at paragraphs 12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

14.  I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and leave to apply for judicial review.

15.  Firstly, the application was filed some 25 months out of time and the Applicant has not (despite the lengthy period that elapsed between the TCAB Decision and the making of her leave application) offered any explanation or justification for the delay. There has hence been not only an undue, but also a very lengthy and unexplained delay, for which I do not see any good or valid justification. I consider that this considerably weakens the request for indulgence to be granted to her in the court’s discretion, and have borne it in mind in conjunction with the other matters below.

16.  Secondly, and turning to the merits of her application, the Applicant has not (again despite the lengthy period that elapsed between the TCAB Decision and the making of her leave application) identified or set out any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

17.  However, given the arguability test, the significance of the merits of the substantive application in relation to whether there is “good reason” to extend time, and the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

18.  After discussion of the procedural and other history at Paragraphs 1 to 16, which I have summarised above, the TCAB/NRCPO set out the issues to be determined (Paragraph  17). Crucially, it then found that there was no feared risk that would materialise upon her being refouled to Vietnam. This was based on its rejection of the primary facts of her case (having identified the principles as to burden and applied a “relatively low” standard of proof relating to the primary facts), which clearly included the existence of the Loan and apparent demands from Nguyen apparently based thereon. The TCAB/NRCPO gave adequate reasons for these conclusions, identifying the inconsistencies and implausibilities in her case (Paragraphs 18 to 22).

19.  Although the TCAB/NRCPO did not need to do so, it also found that there was state protection available to the Applicant. In doing so, it had regard to the relevant test for state protection and gave adequate reasons for its conclusions with reference to relevant COI and evidence (Paragraphs 23 to 28).

20.  Relying on inter alia the aforesaid conclusions, the TCAB/NRCPO then went on to assess that there was no Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk (in each case giving adequate reasons), and that internal relocation was a viable option. It hence held that the Applicant had failed to establish her claim, rejected and dismissed the appeal/petition, and confirmed the Director’s Decision and Director’s Further Decision (Paragraphs 29 to 60).

21.  Despite my aforesaid examination and scrutiny, I do not see that it is reasonably arguable that there is procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying her claim, the risk of harm, and consequently Persecution Risk, BOR 3 Risk, and BOR 2 Risk, all of which are (as with state protection and internal relocation) primarily within the province of the decision-making body.

22.  There is hence no reasonably arguable ground of judicial review in relation to the TCAB Decision, no reasonable prospect of success, and the merits of the substantive application are not reasonably arguable.

23.  Finally, given the lack of any reasonably arguable grounds I see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.

Conclusion

24.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the 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