Nguyen Van Toan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1768/2020[2025] HKCFI 4232

Court

High Court CFI

Date26 Sep 2025

Judge—

Case Document

100%

HCAL 1768/2020

[2025] HKCFI 4232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1768 of 2020

BETWEEN
	Nguyen Van Toan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

The application

1.The applicant is an illegal immigrant.He lodged a non-refoulement claim with the Director of Immigration (“the Director”). However, he failed to submit a completed Non‑Refoulement Claim Form (“NCF”) within the specific time by 17 February 2017. His application was deemed to be withdrawn by virtue of section 37ZG of the Immigration Ordinance (“the Ordinance”).[1]

2.By an undated letter received by the Immigration Department on 6 March 2017 (“the said letter”), the applicant applied for re-opening his claim. The immigration officer required the applicant to provide evidence in writing to satisfy the conditions provided under section 37ZG(3).[2]

3.In the said letter the applicant explained that because of his sickness, the appointments with his Duty Lawyer was extended several times and the final appointment was on 17 February 2017. However, he was absent because he was sick, but he did not have any medical certificate to support him and the Duty Lawyer Scheme did not act for him anymore.

4.The immigration officer was not satisfied that he had complied with section 37ZG(3)(b) that his failure to submit the NCF was due to circumstances beyond his control. The immigration officer therefore refused his request to re-open his claim.

5.He appealed to the Torture Claims Appeal Board (“the Board”) by filing Notice of Appeal on 12 July 2019. According to the Board, he was late for 2 years 1 month and 20 days.

6.The applicant stated his reasons for being late in Section 5 of the Notice of Appeal as follows:

“I was sick so I could not attend the appointment with my lawyer (DLS) to complete my case document by regulated time. I got Attendant Certificate from the hospital on 07 February 2017. I did not receive any notice or letter from the Immigration Department on 07 April 2017.”

7.Having considered the applicant’s reasons, the Board, by the Board’s Decision, refused to extend time for him to file his Notice of Appeal for the following reasons:

a. it did not accept the applicant’s reasons for failing to attend the conference with his duty lawyer for completion of the NCF; and

b. he has not given sufficient reason for his delay in filing the Notice of Appeal with the Board for over 2 years. See hyperlink paragraphs 15-18 https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001768_2020_files/the_Board's_Decision.pdf.

8.By Form 86 filed on 4 September 2020, the applicant applied for leave to apply for judicial review of the Board’s Decision.

9.In his affirmation in support of his application, the applicant did not dispute the above facts.

The issue in question – application of section 37ZT of the Ordinance

10.The issue before this Court is whether the Board had correctly applied section 37ZT of the Immigration Ordinance, Cap.115 as it stood on 7 May 2020, to this case. Section 37ZT was amended in 2021.

11.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA, Hon Yuen JA and Lisa Wong J. 2 April 2019 held that it is incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.

Discussion & conclusion

12.In this case, the applicant has failed to file the NCF, which contains the facts of his claim. The Director or the Board did not even have the applicant’s alleged facts of his claim for consideration.

13.The Board’s obligations under the Ordinance was to consider the merits of the applicant’s claim on the evidence before it. Since the applicant had not given his facts for the Board’s consideration, the Board could only consider his reasons for not putting in the facts in support of his claim, nothing else.

14.Therefore, in my view, the Board is correct to exercise its discretion in accordance with the original version of section 37 of the Ordinance and refused the applicant’s application to file his notice of appeal out of time. There is no reason for this Court to interfere with the Board’s Decision.

15.For the reasons above, I am satisfied that there is no reasonable prospect of success in the applicant’s intended application for judicial review of the Board’s Decision.

16.I dismiss the applicant’s application.

Dated the 26^th day of September 2025

(Klein Tse)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26/9/2025 Nguyen Van Toan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26/9/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16136/19/7/102/V2317 Director of Immigration Putative Interested Party’s ref. no.: L/M (16059) in ImmD RA 7/37/C Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] 37ZG. Deemed withdrawal of torture claim on failure to return completed torture claim form

(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

[2] (3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person— (Amended 7 of 2021 s. 14)

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)