Nguyen Duc Thinh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1146/2020

[2025] HKCFI 3450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1146 of 2020

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party.

2.   Extension of time to file the application for leave to apply for Judicial Review be refused.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 10 June 2020 (the “Form 86”), the Applicant sought 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 6 January 2020 (the “Board’s Decision”).

2.The Applicant only named the Board as the proposed respondent.  As it is usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 18 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In short, it is the Applicant’s claim that he was indebted to an individual known as “Ngyuen Duy Luan” (the “Creditor”) and that the Applicant would be subject to serious harm or even be killed by the Creditor or his triad associates should the Applicant be returned to Vietnam.

The Leave Application is out of time

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 6 April 2020.  However, the Form 86 was filed late for about 2 months.

6.In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

7.In the present case, the delay of about 2 months is substantial. In his affirmation accompanying the Form 86, the Applicant claimed that he did not know about the Board’s Decision as it was sent to his former correspondence address.  He also emphasised that he was poorly educated and could not read English or Chinese. I am prepared to accept that this the delay is caused by a genuine misunderstanding rather than deliberate inaction on the part of the Applicant.  However, this is not a valid reason, given that the Applicant is under a duty to inform the Board of his change of address, see: s.37ZA(2) of the Immigration Ordinance (Cap 115).

8.In my view, the most crucial factor in deciding whether to exercise my discretion to extend time in the present case is the merits of the Leave Application.  If it is bound to fail, no meaningful purpose can be served by granting leave.

Merits

9.It is trite law that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.In the Form 86 and the accompanying supporting affirmation, the Applicant did not advanced any grounds in support of the Leave Application. 

11.At the Hearing, the Applicant confirmed that he had nothing to add on the merits.

12.Notwithstanding the Applicant’s failure to identify his grounds of review and having rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-

(1)  The Board was entitled to find the Applicant’s factual account of the alleged loan from the Creditor to be a fabrication, having regard to numerous inconsistencies in his evidence given on different occasions (at §§27-60, 62).

(2)  Further, I do not see any basis to interfere with the Board’s finding that there was no risk of threat, given that there is no evidence that the Creditor has ever harmed the Applicant or his family members (at §62(iv)).

(3)  Having regard to relevant Country of Origin information and the fact that the Applicant is an able bodied adult with working experience, the Board was plainly correct to find that reasonable internal relocation alternatives are available to the Applicant as there is no credible evidence to support the Applicant’s bare assertion that the Creditor would have the means to pursue him throughout Vietnam, which is, after all, a large country with a population of almost 100 million people (at §§77-80).

13.I am not satisfied that the Board has erred in the enhanced Wednesbury sense or that there was any legal error or procedural impropriety in the Board’s Decision. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  Hence, I see no reason to grant a time extension.

Conclusion

14.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 11^th day of August 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