DINH DUC TUAN alias DINH DINH TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 635/2020

[2025] HKCFI 3775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 635 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 oral submissions by the Applicant 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 and only the Director of Immigration as the Putative Interested Party, and by replacing “and Immigration Department” with “/Non-Refoulement Claims Petition Office”;

2.   The application for 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 and filed on 14 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), he sought leave for judicial review. He therein identified the decision as being one of the Torture Claims Appeal Board (“TCAB”) and Immigration Department dated 23 November 2018. However, the Affirmation says that he does not agree with the decision of the TCAB, does not mention a decision of the Immigration Department or the Director of Immigration (“Director”), and does not exhibit any decision.

2.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

3.  There is no decision of the TCAB and Immigration Department dated 23 November 2018. However, there is a decision of the TCAB/NRCPO (“Non-Refoulement Claims Petition Office”) dated 23 November 2018 which relates to the Applicant’s non-refoulement claim (“TCAB Decision”).

4.  In the circumstances, I take it that the Applicant seeks leave to apply for judicial review of the TCAB Decision. I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

5.  The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief are set out in the TCAB Decision.  I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Vietnam he would be harmed or killed by three creditors due to his failure to pay his debts;

b.  The claim was assessed on the grounds of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 31 May 2017 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing on 15 August 2018; and

d.  The TCAB/NRCPO then handed down the TCAB Decision on 23 November 2018 which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

6.  The present application was hence filed 1 year, 1 month, and 3 weeks (or 13 months and 3 weeks) out of time.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

8.  It is trite that the role of the Court in a judicial review is not to provide 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.  (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).

9.  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] HKCA 14, at §23).

10.  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[5] (iii) the merits of the substantive application[6] (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 §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

11.  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. This is for the following reasons.

12.  Firstly, the delay in this case is not only undue but is substantial, being one of 1 year, 1 month, and 3 weeks (or 13 months and 3 weeks). As mentioned in AW, supra, the longer the delay the more cogent the reason has to be for extending time.

13.  Despite this, there is no request for an extension of time to make the application in the Form 86, and no attempt to advance any reason for the delay in applying. The Affirmation simply says that the Applicant does not agree with the decision and he wants to file a judicial review “Because, I can not go back my home country, my life is in danger over there.” (which claim I deal with below). There is hence clearly no credibly valid or acceptable reason for this substantial undue delay.

14.  Secondly, and turning to merits, the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, hence there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

15.  However, given 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.

16.  The TCAB/NRCPO began by setting out the Applicant’s immigration and procedural history (Paragraphs 1 to 5), followed by his case for non-refoulement relief including as to the incidents relied on (Paragraphs 6 to 23).

17.  The decision-maker then moved on to assess the information and evidence provided by the Applicant, including by assessing the credibility of such. She concluded, having had regard to various issues with the Applicant’s evidence, that it was difficult to believe that the Applicant’s account of his alleged treatment was honest or credible, and that she did not accept his evidence that he had been pursued over debts (Paragraphs 24 to 31).

18.  Nevertheless, the TCAB/NRCPO went on to assess (for prudence and on the assumption that the Applicant’s account was accepted) the risk of harm and whether the grounds for non-refoulement relief were made out. It found that on the evidence there was a low risk that the Applicant would be ill-treated as alleged if refouled, having regard to issues such as the severity of past ill-treatment and motivation, the length of time that had elapsed, the availability of state protection, and the lack of evidence to show that the creditors would be able to locate him in other parts of Vietnam (Paragraphs 30 to 35). It also found, having regard to relevant evidence and COI, that state protection was available and that internal relocation (such as to Ho Chi Minh City) was feasible to further reduce or eliminate the risk of the feared treatment (Paragraphs 36 to 45).

19.  The decision-maker then found that Torture Risk was not established even on the Applicant’s evidence, having regard to the assessment of the risk of harm and issues of state acquiescence (Paragraphs 46 to 51). She was also not satisfied that BOR 2 Risk, BOR 3 Risk, and Persecution Risk were established given her assessment of the risk of harm. Moreover, in relation to BOR 3 Risk she also placed reliance on her rejection of the Applicant’s evidence and credibility, and in relation to Persecution Risk she found that no Convention reason arose (Paragraphs 47 to 63).  As all of the grounds failed, the TCAB/NRCPO upheld the Director’s Decision and dismissed the appeal/petition (Paragraph 64).

20.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was 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 that is sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence and credibility (and consequently the core facts of his case), risk of harm, state protection, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, which are all matters primarily within the province of the decision-making body.

21.  I do not see that the allegations in the Affirmation (which amount at best to a submission) are relevant to the issues before me or assist his application for leave, given my analysis of and the findings in the TCAB Decision, and when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh.

22.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review. The merits of the substantive application are therefore 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 application for leave to apply for judicial review be dismissed and made the other orders above.

25.  The Applicant may make an appointment with my clerk for this decision to be interpreted to him in Chinese, if he wishes.

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