AU VAN DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 431/2023

[2026] HKCFI 4222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 431 of 2023

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 oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 21 March 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 15 September 2022 (the “Board’s Decision”).

2.  On the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 July 2026 and the Applicant attended in person. At the hearing, I pointed out to the Applicant that the Leave Application was filed out of time, and asked whether the Applicant had any explanation for the delay. In response, the Applicant said this happened a long time ago and he could not remember exactly what had happened. He mentioned that there was a typhoon at the time, and the Court told him to submit the application next year (i.e. in 2023). He further mentioned that his original appointment with the Court had been cancelled. I note that there is no explanation provided by the Applicant on oath, and I do not accept that the Court would have told the Applicant to make the application “next year”. In the premises, I do not consider that there is valid explanation for the delay.

4.  Apart from the above, the Applicant indicated at the hearing that he had nothing to say in respect of the Leave Application, despite having requested an oral hearing himself.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  The Board’s Decision was issued on 15 September 2022. The Leave Application was however only made on 21 March 2023. The Leave Application was thus not made promptly, and in any event not made within the three-month period provided under O 53 r 4(1) of the Rules of the High Court (Cap 4A) (“RHC”).

7.  In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

8.  In the present case, the delay was about three months. There is no application for extension of time. Further, as mentioned above, there is no valid explanation for the delay.

9.  Notwithstanding the absence of any valid explanation for the delay, I shall proceed to consider the merits of the intended judicial review, as this is an important consideration in deciding whether to grant the extension.

10.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers 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. Assessment of evidence, country of origin information (COI) materials, 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. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.)

11.  The Applicant did not provide any grounds in support of the Leave Application. No grounds were provided on the Form or in the supporting Affirmation. In the supporting Affirmation, the Applicant simply attached the Board’s Decision.

12.  Having fully and carefully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on its findings and reasoning, in particular that the Applicant was not a truthful witness and there was no credible evidence to support the Applicant’s case (§§53-66 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

13.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

14.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

15.  As the Leave Application was made out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant had made such application. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above.

16.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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