DO THI HUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 177/2021

[2025] HKCFI 5645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 177 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 documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (2) the Director of Immigration be named as the Putative Interested Party; and (3) the date of the decision in respect of which relief is sought be amended to 24 May 2018.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 February 2021 (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 24 May 2018 (the “Board’s Decision”).

2.  In the Form, the Applicant named herself as the proposed respondent. The Applicant did not name any proposed interested parties. As it is trite that the Board should be the proposed respondent and 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.  In the Form, the date of decision in respect of which relief is sought was stated to be 12 June 2018. The Court is not aware of any decision of the Board dated 12 June 2018. At the hearing on 27 October 2025, the Court raised the issue with the Applicant and asked the Applicant to confirm that the date stated therein was incorrect, and the Applicant’s intention is to apply for judicial review against the Board’s Decision. The Applicant said she could not remember the date of the decision, but confirmed that her intention was to apply for judicial review against the decision of the Board. Accordingly, I make an order to amend the date of the decision on the Form.

4.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 27 October 2025 and the Applicant attended in person. At the hearing, apart from what I have stated above, the Applicant had also tried to explain the delay in filing the Leave Application. I shall come to her explanation hereinbelow. Save as aforesaid, the Applicant indicated that she had nothing to say in respect of the Leave Application.

Background

5.  The Applicant’s background, the basis of her claim and the arguments she 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

1.  The Board’s Decision was issued on 24 May 2018. The Form was however only filed on 18 February 2021. The Leave Application was accordingly filed significantly out of time for about 2.5 years.

2.  No application for extension of time has been made by the Applicant.

3.  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.

4.  In the present case, the delay was very substantial. There is no explanation for the delay in the Form or in the supporting Affirmation. At the hearing on 27 October 2025, when being asked about the delay, the Applicant said the Immigration Department wanted to deport her at the time, and so she went hiding for 3 years. She also said she did not know how to file the application.

5.  I do not accept the Applicant’s explanation. If she had filed the Leave Application within time, there was no reason why the Immigration Department would deport her pending the determination of the application. As regards the Applicant’s assertion that she did not know how to file the application, if that was indeed the case, she could and should have sought assistance to do so. The fact that the Applicant eventually managed to file the Leave Application means that she should be able to obtain assistance somewhere.

6.  Notwithstanding the absence of satisfactory explanation for the substantial 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.

7.  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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

8.  The Applicant did not provide any grounds in the Form. In the supporting Affirmation, the Applicant stated that she will be killed by her creditor if she goes back to Vietnam. She said the Board had failed to consider the situation in Vietnam.

9.  I have considered the Board’s Decision in detail. 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 the evidence and the reasons provided (§§5-30 of the Board’s Decision). It should further be noted that the Applicant had failed to attend the hearing before the Board, and had failed to provide any explanation for her absence (§4.1 of the Board’s Decision). As such, the Board could not obtain any satisfactory explanation from her regarding the deficiency of her case. The Applicant can only had herself to be blamed for this (§§31-34 of the Board’s Decision).

10.  As regards what the Applicant said in the supporting Affirmation, there is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

11.  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

12.  As the Form was filed significantly 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 even if an application was made. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above. In the premises, I make an order that the Form be amended as stated 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