Pham Thu Quynh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1153/2020

[2025] HKCFI 5153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1153 of 2020

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

Following:

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 20 November 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 20 February 2020. Her application was filed on 11 June 2020, which was late for more than 3 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing.

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 is a national of Vietnam. She is an illegal immigrant. She had lodged a non-refoulement claim to the Director of Immigration (“the Director”) on the basis that if refouled, she will be harmed of killed by her creditor because she was unable to repay her loan.

5.The applicant made applications for withdrawal and reinstatement of her claim. The final episode is that the applicant, through her duty lawyer applied to the Director to withdraw her claim on 16 July 2018. The Director treated her application as having been withdrawn.

6.The applicant subsequently applied to re-open her claim withdrawn. The Director requested her to provide him with the reasons as required under section 37ZE of the Ordinance, which the applicant had failed to do, In the circumstances, the Director, by the Director’s Decision dated 18 July 2019 (“the Director’s Decision”), refused to re-open her withdrawn claim.

7.She appealed the Director’s Decision to the Board. She was out of time. The Board extended time for her to file her notice of appeal. The details of her applications are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001153_2020_files/the_Board's_Decision.pdf.

8.The Board dismissed her appeal, applying section 37 ZE(2) of the Immigration Ordinance, Cap. 115 (“the Ordinance”) to this application, which provides, inter alia,:

“(1)  A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2)  Subject to section 37ZF(3), a torture claim that has been 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—

(a)  since the withdrawal, there has been a change of circumstances that—

(i)  could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii)  when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)  by reason of special circumstances, it would be unjust not to re-open the claim.”

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

9.The applicant has filed Form 86 dated 11 June 2020 for leave to apply for judicial review of the Board’s Decision.

10.The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

11.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.

12.The applicant has failed to raise any valid ground to challenge the Board’s Decision.

13.In my view, the Board had correctly applied section 37ZE of the Ordinance to the case and the Board’s Decision is reasonable. The Court has no reason to interfere with it.

14.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

15.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 her application.

Dated the 11^th day of November 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