Do Van Binh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1080/2025

[2025] HKCFI 2881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1080 of 2025

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;

Order by Deputy High Court Judge Levy:

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

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

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 8 May 2025, 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 17 June 2024 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 May 2022 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001080_2025_files/the_Board's_Decision.pdf

2.In his Form 86, the applicant named the Director and the “Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly

3.The basis of the applicant’s claim was that he would be harmed or killed by a loan shark with a triad background for an unpaid loan. 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.At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 24 June 2025. The applicant was brought to court by the Correctional Services Institution pursuant to a body order.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is 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[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.In his Form 86 the applicant raised the following grounds for judicial review:

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

8.Before the hearing, the court received a letter dated 16 June 2025 from the applicant. In the letter, the applicant asked for the adjournment of the hearing as he wished to collect more supporting documents and evidence in support of his claim. He also stated that his Leave Application was heard too quickly as he knew from a fellow non-refoulement applicant that the latter’s leave application was only heard 5 years after the issuance. After the court explained to the applicant the nature of the Leave Application, which was different to a hearing before the Board, the applicant told this court that he no longer required an adjournment of the hearing.

9.After the applicant confirmed that the hearing could be continued, this court asked the applicant whether he had any further grounds he wished to add or elaborate. He said he had nothing to say or add.

10.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.[3]

11.In the present case, after having heard the applicant’s oral evidence given at the hearing, the Board found that there were many problems in the applicant’s evidence that undermined the credibility of the applicant’s claims. Even if the Board were to give the applicant’s a benefit of doubt, the Board found, even to the low standard applicable, that the applicant would not face a genuine and substantial risk of being harmed or killed by his creditor and/or his men if he were refouled. The Board also found that the applicant’s injuries did not meet the minimum level of severity. Thus, the Board concluded that there was no real risk of harm. The Board also concluded that state protection was available and that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.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 applicant’s written grounds are either vague or unrelated to the Board’s Decision. At the hearing, despite having been given a chance to further advance his grounds in support of the Leave Application, the applicant provided no further 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[4].

Whether to extend time for the late application

13.Another matter I need to consider is the delay. 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 when grounds for the application first arose. Hence, The Form 86 was filed more than 7 months late (after having excluded the month of August for the period of the Summer Vacation).

14.Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay cannot be regarded as significant. However, it is not short either. A good reason is required to explain for the delay.

15.The applicant explained that he did not receive the Board’s Decision when it was posted to him on 17 June 2014 to his residential address. It was because he was arrested and detained on 6 June 2014 for having taken up employment illegally. On the day before his release from prison on 25 April 2015, he was informed that his appeal to the Board was rejected. Hence, he asked his friend to prepare the Form 86 and the supporting affirmation.

16.In deciding if the applicant’s explanation was reasonable, I am prepared to believe that he did not receive the Board’s Decision due to his incarceration. However, I’m not inclined to accept that during his period of detention, the applicant did not have any knowledge or information about the Board’s Decision. The Board’s Decision was also sent to the Director. According to the applicant, the immigration officer informed him of the result of the Board’s Decision. Hence, it is more likely that he would have been informed of the result much sooner than April 2025 as he asserted. He would likely have access to a copy of the Board’s Decision even during his detention.

17.In any event, having regard to my conclusion above on the lack of the prospects of success, I’d be disinclined to exercise my discretion to extend time for the Leave Application.

Order

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

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

Dated the 30^th day of July 2025

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