Vu Xuan Mat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 945/2021

[2025] HKCFI 6365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 945 of 2021

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 11 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 11 July 2019. His application was filed on 5 July 2021, which is late for more than 1 year and 11 months. This issue will be dealt with below.

2.The applicant did not ask for a 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. He is an illegal immigrant for the reason that he sneaked into Hong Kong by boat on 18 July 2016. He was arrested and he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed 500 million VND for his business. He was unable to repay. The money-lender assaulted him.

5.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000945_2021_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.The Director, by Notice of Decision dated 8 December 2017, (“the Director’s Decision”), refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board decided to deal with the appeal without a hearing.

9.Having considered the evidence and materials, the Board made the findings below.

(1)  The allegedly ill-treatment did not reach the level of severity under BOR 3 risk. [51]

(2)  The possibility of further ill-treatment if he returns to Vietnam is very low. [58]

(3)  There was no evidence to establish BOR 3 risk. [51]

(4)  There was no evidence to establish Persecution risk. [53]-[59]

(5)  There was no evidence to support his claim on torture as defined under the Ordinance. [60]

(6)  There was no evidence in support of BOR 2 risk.

(7)  Internal relocation is viable. [74]

10.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 5 July 2021 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

13.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.

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

15.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.”

16.The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.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

18.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 22^nd day of December 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