Dinh Thi Loan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1155/2020

[2025] HKCFI 3451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1155 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 Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as only the Putative Respondent; 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 11 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 24 November 2017 (the “Board’s Decision”).

2.The Applicant named both the 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 18 July 2025 (the “Hearing”) but the Applicant was absent.

Background

4.The Applicant’s background, the basis and history of her claim and the arguments she 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 gist, the Applicant is from Vietnam. The basis of her claim is that:-

(1)   She took out a loan equivalent to about HK$100,000 (the “Loan”) from a person known as “Tuan” (the “Creditor”). She defaulted on the Loan since 2008 when a fire destroyed her business.

(2)   The Creditor is said to have a triad background. The Applicant claimed that her boyfriend was shot to death by the Creditor’s associates in Thailand and she was forced by the Creditor to traffic dangerous drugs in Vietnam.

(3)   She also claimed that she would not be protected by Vietnam police as she had been charged with committing a crime.

(4)   The Applicant believed that she would be seriously harmed or killed if she were to return to Vietnam.

The Leave Application is seriously 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, ie when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 24 February 2018. However, the Form 86 was filed late for over 2 years.

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.A delay of over 2 years is very substantial on any view. Where an application is many months out of time without proper explanation, 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.No request has been made in the Form 86 or the supporting affirmation for a time extension and no explanation has been provided for the delay.

9.The Applicant has also failed to attend the Hearing. In the circumstances, it is seriously doubtful whether the Applicant has any genuine intention to pursue this Leave Application. I do not see any reason why I should grant a time extension on my own motion in the circumstances.

10.For completeness, I will also consider the merits of the Leave Application below.

Merits

11.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 (unreported, 22 December 2016) per Chow J. (as he was then) at §142.

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

13.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. It is not the role of this court to re-assess the finding of the Board in rejecting the entirety of the Applicant’s factual account given that key aspects of her evidence was found to be incredible (at §§36-42). There is also no indication that the Board had taken into account irrelevant matters or failed to take into account relevant matters. In this regard, I note that, in reaching its conclusion, the Board had already given due weight to the alleged mental problems suffered by the Applicant (§41).

14.Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. In any event, the Applicant’s intended challenge of the Board’s has no realistic prospects of success. 

Conclusion

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

Dated the 15^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