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HCAL 197/2020
[2025] HKCFI 2031
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 197 of 2020
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Dinh Thi Van |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
(1) Form 86 be amended, naming the Director of Immigration instead of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Interested Party.
(2) No extension of time be granted for the application for leave to apply for judicial review and the application herein be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 dated 20 January 2020, the Applicant applies for 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 September 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 12 October 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
2. I have amended Form 86 on my own motion, correctly naming the Director as the proposed interested party.
Background
3. The Applicant’s personal background, the incidents alleged in support of her claim that she would be harmed or killed by her creditors in Vietnam, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.
Discussion
4. The Applicant is absent from the oral hearing requested by him. On the authority of Re Abdus Salam, CACV 125/2019 (judgment dated 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me.
5. The Leave Application is made out of time. Order 53, rule 4 of the Rules of the High Court requires:
“ (1) 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.
(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”
6. However, the Applicant has made no application for extension of time.
7. Bearing in mind the relevant legal principles set out by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 and by G Lam J (as he then was) in Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1, I am not prepared to extend time for the Applicant to apply for leave to apply for judicial review.
8. First of all, the Applicant has not provided any explanation for her delay in taking out the Leave Application.
9. More importantly, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):
(1) The Applicant has not identified her grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (judgment dated 22 December 2016) at §142). In the supporting affirmation, she has merely exhibited a copy of the Board’s Decision, without showing any procedural or other public law errors allegedly committed by the Board (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).
(2) The primary responsibility for assessing the evidence, COI materials, risk of harm, state protection and viability of internal relocation lies with the Board. In view of the seriousness of the issues involved, I have reminded myself to apply an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I am satisfied, after rigorously examining and anxiously scrutinizing the Board’s Decision, that the Board had accurately set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, and upheld a very high standard of fairness.
(3) The Applicant has completely failed to demonstrate that the Board committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision that the Court should intervene by way of judicial review.
10. Concerning the issue of prejudice, it is inappropriate to focus solely on the prejudice to the Applicant if time is not extended, without also taking into account the potential prejudice to the public administration if the current application for leave were allowed to proceed out of time under the circumstances described above. It is crucial to maintain a disciplined approach in the applications of this kind to prevent disruptions to the public administration.
Conclusion
11. For these reasons, I refuse to extend time for the Applicant to apply for leave to apply for judicial review. This being the case, the Leave Application is out of time and falls away.
Dated the 3rdday of July 2025
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( Teresa Ng )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on the 3rd day of July 2025
Dinh Thi Van
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on the 3rd day of July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14045/18/10/387/V2210
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3647/18 (Formerly RBCZ 13363/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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