BUI THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 820/2020

[2025] HKCFI 3741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 820 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;

Application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 filed on 5 May 2020 (“Form 86”), and a supporting affirmation also filed on 5 May 2020 (“the Affirmation”), she sought leave to apply for judicial review for a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 14 June 2019 (“TCAB Decision”)[1].  The TCAB Decision was exhibited to the Affirmation. 

2.  The Applicant sought an oral hearing of her application, but did not appear at such.  I have hence dealt with her application on the papers, including her request in them that her application be allowed although it was filed out of time. 

3.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.  The Applicant’s background and case as to the incidents underlying her claim for non‑refoulement relief are set out in the TCAB Decision.  I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that if she were to be sent back to Vietnam she would be harmed or killed by gangsters;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 24 February 2017 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held two hearings in relation to the Applicant’s non-refoulement claims on 19 February and 15 April 2019 at which the Applicant was represented by the Duty Lawyer Service[6]; and

d.  The TCAB/NRCPO then handed down the TCAB Decision on 14 June 2019 which rejected the Applicant’s petition/appeal. 

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380). 

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886). 

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). 

8.  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[7] (iii) the merits of the substantive application[8] (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 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

9.  The delay in this case is not only undue but is substantial, being one of just over 7 months and 3 weeks.  As mentioned in AW, supra, the longer the delay the more cogent the reason has to be for extending time. 

10.  The Applicant, in requesting that her application be allowed although it was filed out of time, gave the following explanation in the Affirmation:

a.  She had received the TCAB Decision in June 2019. She “went to the [Legal Aid Department (“LAD”)] and made an application for legal aid”, with a reference number LA/MJR/17351/2019(DN39);

b.  However, “until April 2020” she received no reply from them. She went again to the LAD on 26 April 2020 where she was informed that her “application was refused, and [the Applicant] was sent a letter.” She said that “I received no such letter”; and

c.  Due to the fact of the application, she “assumed that [she] would get assistance in making” the application for leave to apply for judicial review. 

11.  Given the length of the delay I do not consider that the explanation is credibly valid or acceptable:

a.  The Form 86 and Affirmation have clearly had the benefit of input from someone with legal training and who must be taken to have known of the duty of full and frank disclosure. They are neatly typed and formatted, name the correct putative respondent and interested party, seek specific remedies including certiorari, an extension of time, and costs, and the Affirmation not only attempts to explain the reasons for delay but even goes so far as to set out the Legal Aid application reference number. However, the Affirmation does not explicitly set out exactly when in 2019[9] she went to the LAD and applied for legal aid, and in particular whether she did so within or after the 3‑month time period (and if the latter, then the reason for such late application), which are clearly highly relevant matters;

b.  Moreover, the Affirmation only advances a bare allegation that she did not receive the refusal letter from Legal Aid and fails to refer to, explain, or provide proof of relevant underlying facts or proof in relation thereto, namely:

i.  The Affirmation does not explain whether the Applicant had the same address throughout, or whether she moved address since she allegedly applied for Legal Aid (and if she had moved, when she did so and whether she updated the LAD with her new address[10]). Nor is there any explanation for the absence of such details or matters; and

ii.  Even if, as the Applicant claims, she had not in fact received (and hence become aware) of the refusal letter prior to 26 April 2020, she had 9 days between that date and the filing of her application to obtain and exhibit a copy of the refusal letter to the Affirmation, mention the date of the refusal letter, or explain why she had been unable to do either.  Yet she has done none of these things. 

These further omissions are particularly surprising and notable given, again, the Applicant’s duty of full and frank disclosure which would have been known to the person who had assisted the Applicant in preparing her leave application; and

c.  Further, and in any event, I do not see any valid reason for the Applicant to have “assumed” (as she claims) that she would get legal aid in making her application for leave to apply for judicial review.  Such an attitude is misconceived and does not even begin to suggest an acceptable explanation for the substantial undue delay.   

12.  Turning to the merits of the substantive application, and despite the contents of the Form 86 and Affirmation having clearly had the benefit of input from someone with legal training, the Applicant has failed to identify or set out any grounds of judicial review in the Form 86 or Affirmation, hence there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

13.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

14.  The TCAB Decision commences by setting out the Applicant’s general background and procedural and immigration history, including the making of the Director’s Decision and the relevant 4 bases of risk (Paragraphs 1 to 5). There was then an explanation of the procedure adopted at and relation to the hearings before the decision-maker, including the giving of evidence, and of directions for written submissions (Paragraph 6). 

15.  The TCAB/NRCPO then set out the Applicant’s case and the issues (Paragraphs 7 to 13).  It then assessed the Applicant’s claim on the grounds of Torture Risk having regard to the law (Paragraphs 14 to 20), and by way of a thorough appraisal of the Applicant’s case wherein the decision-maker concluded that he did not believe the Applicant’s testimony, did not accept that she was an honest and reliable witness, found that the acts complained of did not constitute “torture”, and had regard to issues such as state acquiescence, state protection, and the risk of harm.  He concluded that on the evidence there were no substantial grounds to believe that the Applicant would, if refouled, be tortured, and found that if returned to Vietnam she would not be tortured (Paragraphs 21 to 44). 

16.  The TCAB/NRCPO went on to conclude that the Applicant had failed to establish that BOR 3 Risk, Persecution Risk, and BOR 2 Risk as bases for non-refoulement, in each case having regard to the relevant principles, and the evidence and material before it, as well as to relevant concepts such as the risk of harm, the availability of state protection, and the lack of a Convention reason in relation to Persecution Risk (Paragraphs 45 to 69).  It did not consider issues relating to internal relocation as there was no need to do so in the circumstances (Paragraphs 70 to 72).  Finally, it concluded that the Applicant had failed to make out her case for non-refoulement under the relevant headings, and confirmed the Director’s Decision (Paragraphs 73). 

17.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s credibility, risk of harm, state protection, and consequently as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.  

18.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, and hence that there is any basis for the court to intervene by judicial review.  I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  I hence see no good reason to extend time for leave to apply for judicial review, and I do not consider that I should grant such an extension.  I would have reached the same conclusion even if I had found (which I have not) that there is a credibly valid or acceptable reason for the substantial undue delay.  I hence refuse to grant such an extension and to grant leave to apply for judicial review. 

Conclusion

19.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above. 

20.  The Applicant may make an appointment with my clerk for this decision to be interpreted to her in Chinese, if she wishes. 

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