DUONG NGOC SACH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1767/2021

[2026] HKCFI 2748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1767 of 2021

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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time to the applicant to file the application for leave to apply for judicial review out of time. 

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 30 December 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 May 2021 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 23 November 2020 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001767_2021_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant names the Board and the Director as the proposed respondents and did not name any party as the interested party. As the Board should have been the proper putative respondent and the Director, the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by the loan shark with triad background for his debts. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly, and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided none at all. In the supporting affirmation, the applicant averred that the Board’s Decision was reached unfairly without allowing him an opportunity to clarify his case and situation in her country.

7.  On 27 April 2026, the applicant filed an affirmation together with a letter to apply for the withdrawal of the Leave Application. The applicant affirmed that it was now safe for him to go back to his country. He further confirmed that he made the application out of his free will, and that he understood the consequences of his withdrawal application. In the circumstances, this court will dispose of the Leave Application on paper.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality. In the present case, the Board found that since the creditor had honoured the settlement agreement arranged by the police in not chasing after the applicant for the repayment of the outstanding Loan, the applicant would not be subjected to any risks of harm if refouled. It also found that the injuries the applicant suffered in the only attack by the creditor were not serious, thus not meeting the requisite requirement of severity. It further found that state protection and internal relocation would be reasonably available. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The assertions the applicant made in his supporting affirmation were general and vague, and could not constitute any valid grounds. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Whether to grant extension of time

10.  More importantly, there is a one-month delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. Hence, the Leave Application was late for more than 4 months.

11.  The applicant provided no reason at all for the delay. Having regard to the conclusion above that the intended challenge does not have any prospect of success, this court declines to exercise its discretion to grant an extension of time for the late filing of the Leave Application.

Withdrawal application

12.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

13.  The Form 86 be amended on the court’s own motion.

14.  There shall be no extension of time to the applicant to file the application for leave to apply for judicial review out of time.

15.  The applicant’s application for leave to apply for judicial review 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