DINH CHINH QUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 568/2021

[2026] HKCFI 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 568 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 the documents and the Applicant being absent in open court;

1.     The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 22 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 31 July 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 20 December 2017.

2.  The Applicant requested for a hearing of this application. He was absent. I see no irregularity in the notification process.

Background

3.  The Applicant is a national of Vietnam. In gist, he fears that his creditor would seriously injure him should he return to his home country.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Legal Principles

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.     The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[2] (iii) the merits of the substantive application[3] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.     Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.     If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.     Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

8.  The Application was grossly out of time for about one and a half year.

9.  For the reasons stated below, applying the well-known principles stated above, I decline the request to extend time.

10.  First, no real reason for the gross delay has been given. In his affirmation dated 22 April 2021, in gist, he stated that because he did not know English and received no legal advice, once the 3-month limit was passed, he thought that he had lost his right to appeal. He failed to give any details as to why he could not observe the 3-month limit in the first place, nor had he explained when and how he decided to make the present application. For completeness, as the Court of Appeal has repeatedly held, the high standard of fairness required by law does not mean legal or interpretation service has to be made available at any time the applicant desires (Akhondo Shakil [2021] HKCA 1616 at §§15, 16).

11.  Second, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter PoFunChan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.

12.  The Applicant did not state any grounds on which the relief is sought, other than stating that he would submit documents “to give the Court a more complete picture of the present case”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

13.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [29-36].  In particular, I agree with the TCAB that this case is “no more than a creditor seeking arrears in payment of a loan from a debtor who was in default” [30]. His evidence lacked essential particulars (e.g [26]) and was irrational [27]. The TCAB also observed, saliently, that his family members had not been threatened or harmed by his creditor in any way after he left Hai Phong [14]. This is a clear case that his application ought to be rejected.

14.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. 

15.  Third, an extension of time for an unmeritorious application such as the present one, coupled with the gross delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process. 

16.  In light of the foregoing, no extension of time is granted and the application is 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