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

HCAL 1113/2020

[2025] HKCFI 4342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1113 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 Applicant being absent in open court;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 April 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 3 July 2019. His application was filed on 5 June 2020, which is late for about 11 months. This issue will be dealt with below.

2.The applicant did not request a hearing. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 39, is a national of Vietnam. Police arrested him on 9 July 2016 and he admitted he had entered Hong Kong illegally on 6 June 2016. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay his loan of 500 million VND he had borrowed for his business, which had failed. The creditor and her subordinates had beat him with poles, stabbed his chest and vandalized his home, taking away his television set and motorcycle. He did not seek medical treatment or report the matter to police.

5.Details of the applicant’s story can be found in the Board’s Decision. See the hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001113_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 24 January 2017 (“the Director’s Decision”), the Director refused the applicant’s claim for the reason that it was unsubstantiated. Besides, the Director found that state protection will be available and internal relocation is viable, which will mitigate or neutralize the risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 15 February 2019, the Board conducted an oral hearing. However, the applicant was absent despite prior notice to him. The Board issued a statutory notice to him for an explanation of his absence. He did not respond to the notice and the Board proceeded to assess his appeal by reference to the evidence before it.

9.Having considered the applicant’s evidence, the Board found that his evidence of coming to Hong Kong were bare assertions and unreliable. It rejected his evidence.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 5 June 2020 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision. Nor did he explain why he was absent at the Board’s hearing or his delay in this application.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.There is no reason for this Court to interfere with the Board’s Decision.

16.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 2^nd day of October 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