LUONG TRAC QUANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 681/2021

[2026] HKCFI 4564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 681 of 2021

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 the Applicant’ submission in open court.

1.  Extension of time to file the leave application be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 May 2021 seeking leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 September 2017 (the “2017 Notice”) refusing his application for non-refoulement protection.

2.  The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Vietnamese national, now aged 36. He surrendered to the Immigration Department on 28 May 2015 claiming to have entered Hong Kong illegally from Mainland China on 14 May 2015. On the same day, he raised a non-refoulement claim by way of written signification (the “previous claim”). In gist, he claimed that if returned to Vietnam he would be killed by a moneylender for being unable to repay the loan he borrowed from the moneylender. His claim was rejected by the Director’s 2017 Notice. His appeal against the 2017 Notice was dismissed by the Board’s Decision. He was removed back to Vietnam on 16 November 2018.

4.  He sneaked into Hong Kong again and was arrested by the police on 2 March 2021. Then, he made a request to file a subsequent claim (the “Request”). He asserted that the same moneylender learned that he had returned to Vietnam. The moneylender and his men went to his home, assaulted him, demanded repayment of the outstanding loan and interest, and threatened to kill him if he did not pay. They threatened him many times. Out of fear he sneaked into Hong Kong again. While in Hong Kong, he learned from his wife that the moneylender had assaulted her and that his wife and her children fled from their home. On 4 May 2021, the Director issued a Notice of Decision refusing his Request for the reason that his intended subsequent claim is just a repetition of his previous claim which had been finally determined by the Board’s Decision and the Applicant had not shown any significant changes in circumstances (the “2021 Notice”).

5.  By this leave application, the Applicant seeks leave to apply for judicial review of the Board’s Decision dated 30 October 2018 and not the Director’s decision in his 2021 Notice. The Court seriously considered if the Applicant had identified the wrong decision by mistake, but discarded that possibility. The Applicant had received the 2021 Notice on about 4 May 2021 and filed the leave application within seven days. As the Form 86 shows, he was then in detention which suggests he must have started the process of making the application almost as soon as he received the 2021 Notice. Under those circumstances, if his intention was to seek a review of the 2021 Notice, he would not have expressly identified the decision sought to be reviewed as the Board’s Decision made more than three years ago. Besides, having also rigorously examined the Director’s 2021 Decision with anxious scrutiny, this Court is satisfied there is no prospect of success in a judicial review of the 2021 Notice. The immigration officer was absolutely correct. The intended subsequent claim is based on the same facts as the Applicant’s previous claim which had been finally determined by the Board’s Decision and he has shown no significant change in circumstance which could satisfy the requirements for making a subsequent claim under section 37ZO of the Immigration Ordinance.

The delay in taking out the leave application

6.  The leave application was filed almost two years and six months after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application 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 there is good reason for extending the period within which the application shall be made. The leave application was made almost two year and three months beyond what is usually regarded as having been promptly made. The Applicant has to show good reason for extending the time to file the leave application.

7.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung [2], per Litton PJ.

8.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. Three months is usually a more than adequate period for an applicant to take all preparatory steps for filing a leave application. The Applicant has no reasonable explanation for the almost twenty-seven months’ delay. The leave application was not promptly made. The principle stated by the Court of Final Appeal in Po Fun Chan v Winnie Cheung clearly applies. This Court could not find any good reason to extend the time for filing his leave application.

Conclusion

9.  For these reasons, extension of time to file the leave application and the leave application are refused.

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