HOANG THI NHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 61/2022

[2026] HKCFI 2081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 61 of 2022

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 be amended on the court’s own motion.

2.  There shall be no extension of time to the applicant to file the application for leave to apply for judicial review out of time.

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

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 17 January 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 17 September 2021 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 29 March 2021 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000061_2022_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant did not name any party as the interested party. As the Director should have been the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the loan shark with triad background for an outstanding loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision. It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly, and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided none at all. In the supporting affirmation, the applicant averred that the Board’s Decision was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country. If she were refouled, she would face the risk of being killed or tortured.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality. In the present case, after the Board had examined the applicant’s evidence in relation to the various occasions of encounter with the loan shark, it concluded that the applicant was not a credible witness. It found that the applicant’s evidence was full of contradictions and inconsistencies which the applicant was not able to satisfactorily explain. The Board further found that the loan shark did not have any intention to seriously harm or kill her. The Board therefore found that the applicant would not be subjected to any risk of harm if refouled. It further found that internal relocation was reasonably available. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The assertions the applicant made in her supporting affirmation were general and vague, and could not constitute any valid grounds. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Whether to grant extension of time

9.  More importantly, there is a one-month delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. Hence, the deadline for the filing of the Leave Application had expired on 17 December 2021.

10.  Despite the relatively short delay, the applicant shall still be required to provide reason for the delay. However, she provided none at all. Having regard to the conclusion above that the intended challenge does not have any prospect of success, this court declines to exercise its discretion in granting an extension of time for late filing of the Leave Application.

Orders

11.  The Form 86 be amended on the court’s own motion.

12.  There shall be no extension of time to the applicant to file the application for leave to apply for judicial review out of time.

13.  The applicant’s 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