HA CHAN DUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2327/2020

[2025] HKCFI 3754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2327 of 2020

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 present in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 22 August 2020. His application was filed on 27 November 2020, which is late for 3 months. This issue will be dealt with below.

2.  The applicant requested an oral hearing. He appeared before the Court on 4 July 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

4.  This decision is prepared in English despite the Board’s Decision is in Chinese because the applicant’s affirmation in support of this application is in English.

The applicant

5.  The applicant, aged 43, is a national of Vietnam. According to the applicant, he arrived in Hong Kong illegally by boat on 12 May 2014 and was arrested by police on 15 May 2014. In due course, he lodged a non-refoulement claim.

6.  The applicant’s claim was based on his fear of being harmed or killed by his creditor and the relatives of the traffic accident victims whom he injured in an early 2014 traffic accident.

7.  According to the applicant, after the traffic accident, he was asked by police to settle it peacefully in private because it was a private dispute. Since the applicant had to compensate the victims, he sought a loan from a creditor for 550 million Vietnamese Dong. However, the relatives of the accident victims went to ask the applicant for more compensation, and the creditor also sent people to demand repayment. Worried that his life was in danger, the applicant fled from Vietnam. Details of his claim are set out at paragraph 14 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decision dated 30 April 2018, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director further found state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 3 May 2019, the Board conducted an oral hearing for his appeal. The applicant failed to appear at the hearing or provide a written explanation to explain his failure after the Board issued him a letter. [16]. The Board proceeded to consider his appeal on the papers before it.

11.  Having considered the evidence, the Board found that the events described by the applicant was relatively straightforward but was contradictory as well as ambiguous, and in any event, the risk of alleged serious harm did not seem high [38-47]. In any event, the Board was satisfied that internal relocation was reasonable, [69-71] In conclusion, the Board held that the applicant’s claim failed under all applicable risks. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink for the Board’s Decision https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002327_2020_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 27 November 2020 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant did not raise any specific ground in support of his application. Nor did he explain his late application.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted that he had married a Hong Kong resident and had 2 children, who have the right of abode in Hong Kong. They have mental problems.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

18.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. The fact that he had his wife and children in Hong Kong is not valid to challenge the Director’s Decision and the Board’s Decision.

19.  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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