Do Thi Luyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1526/2020

[2025] HKCFI 3431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1526 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 the Applicant being absent at the hearing 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 name of the Putative Respondent be amended to the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office; and

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

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 22 July 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 19 January 2018  (the “Board’s Decision”) which rejected the non-refoulement claims of the Applicant, her husband and her son.

2.In the Form 86, the Applicant has named the both Board and the Director of Immigration (the “Director”) as the proposed respondents.  As it is usual practice that the Board should be the proposed respondent whereas 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 22 July 2025 (the “Hearing”) but the Applicant was absent.  As a result of the absence of the Applicant, this court is unable to ascertain with the Applicant the claim status of her family members who had previously also lodged their appeals to the Board and whether they have also applied for judicial review[1].

Background

4.The Applicant’s background, the basis of her claim and the procedural history had been set out in details in the Board’s Decision, and it is not necessary to repeat the same here.  The hyperlink to the Board’s Decision is included below[2] for reference.  In short, the Applicant is from Vietnam.  The basis of her claim is that she[3] would be subject to serious harm or even be killed if she were to return to Vietnam because she was indebted to a loan shark (the “Adversary”).

Discussion

The Leave Application is out of time

5.As provided in 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 19 April 2018.  Hence, the Applicant was late for about 27 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.Where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ.

8.In the present case, the delay of about 27 months is most serious and exceptional. No explanation has been made by the Applicant in her Form 86 and her accompanying affirmation as to the reason for her delay despite being expressly requested to do so in the Form 86.

9.Given the lack of any application for time extension, the serious delay and the absence of explanation for the delay, I am prepared to dismiss the Leave Application on account of these factors per se.

10.I should also point out that the Applicant had failed to attend the hearing before the Board on 16 October 2017, even though they were notified of the hearing on 3 August 2017.  The Applicant also failed to respond to the Board after the Board wrote to her requesting an explanation, see Board’s Decision §§5-7.  Again, I note that no explanation has been given by the Applicant for her absence in the Form 86 or supporting affirmation.

11.The Applicant’s unexplained absence at the hearing before the Board on 16 October 2017 and at the present Hearing also give rise to a serious doubt over whether she had any genuine intention to pursue her non-refoulement claim.

12.Notwithstanding the above and for completeness, I shall also briefly consider the merits of the Leave Application below.

Merits

13.The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal.  Though in non‑refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Factual findings such as 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: See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

14.Further, 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 (unreported, 22 December 2016) per Chow J. (as he was then) at §142.  In the Form 86 and her supporting affirmation, the Applicant has failed to provide any specific grounds in support of the Leave Application.

15.Further, having reviewed the Board’s Decision with anxious scrutiny, I do not consider it to be tainted with any errors of law, procedural unfairness or irrationality.

16.Notwithstanding the Applicant’s absence, after giving detailed consideration of the Applicant’s written evidence and having highlight the various incoherent, inherently improbable and unsatisfactory aspects in the crucial part of her evidence, the Board concluded that the Applicant’s case consisted of merely bare assertions with no real detail and not supported by credible evidence and in light of her unexplained absence at the hearing before the Board, found her entire factual case to be incredible (§§28, 32-33).

17.For completeness, I would add that the present case is materially different from the situation in Re Hidayah [2018] HKCA 595:-

(1)  In Re Hidayah, the Board was unable to determine the credibility of the applicant due to her failure to attend the Board’s hearing and the Board did not give any elaboration as to why it was unable to determine the Applicant’s credibility (§8).  Hence, the Court of Appeal held (at §15) that, even though the applicant bears the burden of proof that the claimed fear and risk was well founded, where there was no adverse finding on the credibility of the applicant’s case, the Board should have proceeded to analyse and assess the claim against all applicable grounds on the basis that the applicant’s case was plausible.  Therefore, the Court of Appeal took the view that there was an arguable ground that the Board had failed to give sufficient reason for its decision.

(2)  The principle laid down in Re Hidayah is not applicable to the present case.  As I have highlighted above, the Board have in fact given detailed reasons in its analysis of the flaws in the Applicant’s evidence and reached a negative finding on the Applicant’s credibility.  It had also considered its finding against the requirements of each applicable grounds (§§34-38) before dismissing the Applicant’s non-refoulement claim.

18.Accordingly, the Applicant’s intended challenge of the Board’s Decision is in any event not reasonably arguable with any realistic prospects of success. No useful purpose can be served by granting an extension of time.

Conclusion

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

Dated the 13^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