LUU NGOC THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1751/2020

[2025] HKCFI 4473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1751 of 2020

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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent and the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 31 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision “10 May 2019”. He named both the Torture Claims Appeal Board (the “TCAB”) and the Immigration Department as proposed respondents as well as interested parties.

2.  From the case record, there was a decision of the TCAB dated 5 July 2019 (the “TCAB Decision”), in which the TCAB refused to allow the Applicant to appeal out of time against a decision dated 29 November 2018 by the Director of Immigration (the “DOI”) in refusing his non-refoulement protection claim.

3.  I amended the Form 86 accordingly on my own motion, naming the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant did not request for a hearing and this application is to be dealt with on paper.

5.  This application is about 10 months out of time and there is no application for extension of time, nor any explanation proffered to explain the substantial delay.

6.  That being said, as will be explained below when examining the merits of this application, it appears to me that there is a good reason to extend the period for making this application under O.53, r.4(1) of the RHC.

Background

7.  The Applicant is a national of Vietnam. His non-refoulement protection claim was refused by the DOI by its decision dated 29 November 2018. However, the Applicant only filed his Notice of Appeal to the TCAB on 11 March 2019, i.e. almost 3 months out of time. Details of the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.  Looking at the TCAB Decision, the issue before it was whether the Applicant’s late filing of the Notice of Appeal should be allowed. The governing statutory regime was that under s.37ZT of the Immigration Ordinance (Cap. 115) (the “Ordinance”). As at the time of the TCAB Decision, the version of s.37ZT of the Ordinance required consideration of “any other relevant matters of fact within the knowledge of the Board” (then s.37ZT(2)(b)); this requirement has since 1 August 2021 been removed by statutory amendment.

10.  Having correctly identified the above regime [5], reciting the elements that were required to be considered [10] and citing the leading English authority on the point [14], the TCAB unfortunately did not heed the local authorities which established that merits of the Applicant’s case was a matter required to be considered as part of the circumstances: Re Qasim Ali [2019] HKCA 430 (at [24-26]); Re Madbar Abdul Salam [2019] HKCA 640 (at [25‑28]).

11.  By simply stating the conclusions that all the circumstances had been evaluated [18] and that there were no other matters known or revealed that might give rise to special circumstances to allow the late filing [19], and together with the omission of reference to the above local authorities, it does not appear to me that the TCAB had considered the merits of the Applicant’s case in its determination under the then s.37ZT of the Ordinance.

12.  I am therefore of the view that the TCAB had apparently erred in law, in that it had failed to take into consideration a relevant matter (namely merits of the Applicant’s case) in the exercise of its discretion under the then s.37ZT of the Ordinance. The present application is therefore reasonably arguable with a realistic prospect of success.

Conclusion

13.  For the above reasons, leave is granted to the Applicant to apply for judicial review of the TCAB Decision.

14.  The Applicant is directed to issue the Originating Summons within 14 days of this decision, and serve a copy thereof together with all relevant documents on the TCAB (as the respondent) and the DOI (as an interested party).

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