BUI THI TAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2743/2019

[2025] HKCFI 2648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2743 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

1.  This is an application by Madam Bui Thi Tam (“Applicant”) for leave to apply for judicial review.

2.  In the Form 86 filed herein on 18 September 2019 (“Form 86”), the Applicant named the Torture Claims Appeal Board (“Board”) and the Director of Immigration (“Director”) as proposed respondents.

3.  In the section for “Judgment, order, decision or other proceeding in respect of which relief is sought” in the Form 86, the Applicant put:

“06_06_2017. Dismis [sic] Hearing Dismissed My Appeal By Torture Claims Appeal Board Dismissed My Petition Seeking Judicial Review.”

4.  In the supporting affirmation also filed on 18 September 2019 (“Affirmation”), the Applicant stated that:

“Affirmation For Lease [sic] To Apply For Judicial Review For My Non Refoulement Claims Decision Against The Director Of Immigration.”

5.  No supporting document was exhibited to the Affirmation.

Procedural history

6.  In this case, the Applicant lodged her non-refoulement claim (“Claim”) by written representations dated 7 March 2016 and 5 April 2016.  Her non-refoulement claim form (“NFC”) was dated 9 June 2017.  She attended a screening interview with the Immigration officer on 11 July 2017.  The Director’s decision refusing the Claim was dated 14 July 2017 (“DOI Decision”).

7.  By a notice of Appeal/Petition of 24 July 2017 (“Appeal”), the Applicant appealed against the DOI Decision to the Board. 

8.  By a letter dated 17 October 2018 addressed to the Immigration Department (“Applicant’s Letter”), the Applicant stated that she would like to return home as soon as possible as her parents were sick in hospital and there was no one taking care of her children.  She further stated that she could handle her problem in her home country.

9.  By a letter dated 2 November 2018 (“Board’s Letter”), the Board informed the Applicant that:

“Your letter [dated 17 October 2018] has been placed before the Board. Unless you advise us otherwise, we presume that –

(a) you are applying to withdraw your appeal/petition against the immigration officer’s decision(s) as contained in the Notice of Decision of 14 July 2017 [i.e. the DOI Decision];

(b) you consider that it is safe for you to return to Vietnam; and

(c)  you understand the consequences of the proposed withdrawal (i.e. once the withdrawal is confirmed, your appeal/petition will be dismissed and the immigration officer’s decision(s) will be confirmed.  Your appeal/petition will be disposed of and finally determined by the Board.  No further action will be taken by the Board in relation to your appeal/petition.)”

10.  The Board had not received any reply to the Board’s Letter from the Applicant.  By a further letter dated 12 November 2018 (“Board’s Decision”), the Board stated that:

“The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you want to return to Vietnam. Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The Board has also directed that the immigration officer’s decision(s) of 14 July 2017 is confirmed.”

This application

11.  The Form 86 suggested that the Applicant sought judicial review of a decision dated 6 June 2017 or a decision on a hearing held on 6 June 2017.  However, it can be seen from the section on “Procedural history” above that there was no decision dated 6 June 2017 nor hearing held on 6 June 2017 in this case.  The NFC was not submitted by the Applicant until 9 June 2017.  It is not possible that hearing or decision on the Claim had been held or issued on 6 June 2017.

12.  In the Affirmation, the Applicant expressly stated that she was applying for leave for judicial review against the Director.  In such case, the DOI Decision should be the subject decision for this application.  However, in the Form 86, the Applicant referred to the Board’s dismissing her appeal as the subject decision for her intended judicial application.

13.  In such case, it is unclear as to whether the Applicant intended to apply for leave for judicial review of the DOI Decision or the Board’s Decision.  Usually, such matter may be clarified with the Applicant at the court hearing.  However, the Applicant failed to attend the court hearing scheduled for 24 April 2025 (“Court Hearing”) despite notice of hearing dated 28 March 2025 having been sent to her and not being returned.  The Applicant had also failed to respond to a previous letter dated 18 February 2025 sent by the court to her inviting her to submit her submissions to the court.  As such, I proceeded to deal with the Applicant’s application for leave for judicial review herein according to the papers placed before the court.

14.  As it is not clear whether the Applicant intended to apply for leave for judicial review of the DOI Decision or the Board’s Decision, I shall consider this application in the context of both the DOI Decision and the Board’s Decision.

15.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

16.  The DOI Decision was issued on 14 July 2017 and the Board’s Decision was issued on 12 November 2018.  The Form 86 was filed on 18 September 2019.  As such, whether the Applicant intended to seek judicial review of the DOI Decision or the Board’s Decision, she was seriously late. 

17.  The Applicant was late for more than 1 year and 11 months to seek judicial review of the DOI Decision and late for more than 7 months to seek judicial review of the Board’s Decision.  These are very substantial and inordinate delay.  The Applicant has not applied for time extension to file the Form 86.  No explanation had been provided by the Applicant in the Form 86 or the Affirmation for her late filing of the Form 86.  She did not attend the Court Hearing to explain for her late filing of the Form 86.  As such, I have no basis to grant time extension for the Applicant to file the Form 86.

18.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, Litton NPJ opined at §52 that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be.  As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

19.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

The Board’s Decision

20.  By the Board’s Decision, the Board directed that the Appeal was withdrawn with the consequential effect of the Appeal being dismissed and the DOI Decision being confirmed.  The Board was satisfied that the Applicant understood the consequences of withdrawal and she applied to withdraw the Appeal out of her free will.  The Board was also satisfied that there was good reason for her proposal withdrawal.

21.  The above were findings of fact made by the Board.  Based on such findings, the Board made the Board’s Decision.

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. … … 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

24.  No proper ground for her intended challenge was stated in the Form 86 and/or the Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in directing the Appeal being withdrawn, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

25.  The Board made the above findings of fact based on the Applicant’s Letter and the response (strictly speaking non-response) of the Applicant to the Board’s Letter.  I see no error of law, nor procedural unfairness or irrationality in any of the Board’s aforesaid findings of fact.

26.  Having rigorously examined the Board’s Decision with anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality in the Board’s Decision.  I am satisfied that the Board had observed high standards of fairness in dealing with this matter.  The Applicant does not have any reasonably arguable case to challenge the Board’s Decision.

The DOI Decision

27.  The Applicant claimed that she would be harmed or even killed by her creditor in Vietnamese because she was unable to repay her debt due to her creditor.

28.  The Director assessed the Claim on the following grounds under the unified screening mechanism, namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

29.  By the DOI Decision, the Director refused the Claim. 

30.  The Applicant had appealed against the DOI Decision to the Board, albeit subsequently withdrawn.  The Court of Appeal had pointed out in Re: Ali Usman [2018] HKCA 955 at §21 that “this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”.

31.  In this case, the Applicant had invoked the appeal/petition process.  Although the Appeal was withdrawn subsequently, I am of the view that the principle set out in Re: Ali Usman (supra) shall still apply as I have found that the withdrawal was a valid one.

32.  I see no reasonably arguable ground for the Applicant to seek judicial review of the DOI Decision in this case.

Conclusion

33.  In the Po Fun Chan case (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

34.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness on the part of the Board in directing the withdrawn of the Appeal, and as I am not satisfied that the Applicant’s intended judicial review, whether against the DOI Decision or the Board’s Decision, is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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