Tran Ba Giang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2241/2020

[2025] HKCFI 4663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2241 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.   The Form 86 be amended on the court’s own motion.

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 9 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 17 August 2018 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) respectively dated 24 November 2015 and 20 January 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002241_2020_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board and the Director as the proposed respondents and did not name interested party.  As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that he would be harmed or killed by the loan shark for the unpaid loans. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 September 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  

7.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant said that his son had already repaid half of the loan and the entire loan should be able to be discharged in 3 years’ time.  He therefore asked to be allowed to stay in Hong Kong for 3 more years.

9.As the Courts have repeatedly stated, 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.[3]  In the present case, the Board found that the applicant’s evidence to have been exaggerated, imaginative and highly implausible.  The applicant’s evidence was found to be incredible and unreliable.  The Board concluded that the many flaws and discrepancies in the applicant’s evidence were irreconcilable and his evidence was incapable of belief.  The Board rejected the applicant’s evidence.  The Board found that there was not a real risk of harm.  The Board also found that state protection and internal relocation were both reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion that the applicant had not faced and would unlikely face any risk of harm after having rejected the applicant’s entire version of his account.  The applicant has not advanced any grounds, whether written or oral, in support of the Leave Application.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to extend time for the late application

11.Another matter I need to consider is the delay.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant was late for more than 2 years.  I consider the period of delay is lengthy and substantial.

12.In his explanation for the delay, the applicant initially stated that he was in detention in 2019 and 2020 for having been found taking up employment illegally.  He said that during the time of custody, he did not receive the Board’s Decision.  However, when the court reminded him that when the Board’s Decision was delivered to him in 2018, he was not in custody.  The applicant then said he did not receive the Board’s Decision.

13.I find the applicant’s explanation above unreasonable, and do not accept it.  Having regard to the long and inordinate delay without a good explanation as well as the lack of merits, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

14.The Form 86 be amended on the court’s own motion.

15.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Dated the 10^th 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