Nguyen Thi Duyen v. Torture Claims Appeal Board

HCAL 2096/2020

[2026] HKCFI 1591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2096 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 20 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 8 July 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002096_2020_files/the_Board's_Decision.pdf

2.The Board did not allow the applicant’s late filing of her Notice of Appeal/Petition (“NOAP”) against the Notice of Decision by the Director of Immigration (“the Director”) dated 2 September 2016 (“the Director’s 2016 Decision”), which rejected her non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).

3.The applicant’s NOAP was filed to the Board on 17 February 2017, which was more than 5 months out of time.  The Board refused the applicant’s late filing of the NOAP regarding the Director’s 2016 Decision.

4.Nevertheless, the Board considered that the applicant’s petition in relation to the Notice of Further Decision by the Director dated 21 December 2017 (“the Director’s 2017 Decision”), which rejected the applicant’s claim on the ground of BOR 2 Risk[4] under the USM, to have been filed within time.

5.Hence, the applicant could only challenge the Board’s Decision in refusing her late filing of the NOAP in relation to the Director’s 2016 Decision.

Late application

6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.However, the applicant filed her Form 86 on 20 October 2020, which was 3 months and 12 days after the Board’s Decision (made on 8 July 2020).  The applicant was hence late for 12 days in making the Leave Application.

8.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

9.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 

10.Although a delay of 12 days is not substantial, there was no explanation offered for the delay.  More importantly, there is no merits in the Leave Application as discussed below.

11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

13.It is not necessary for this court to repeat the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing her application for late filing of the NOAP in relation to the Director’s 2016 Decision.

14.In sum, the applicant based her claim for non-refoulement protection on her fear of a loan shark in Vietnam for her outstanding loan.

Disposal on paper

15.The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

16.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

17.The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 20 October 2020. The applicant merely stated in her affirmation that she did not agree with the Board’s Decision.

Discussion

18.As aforesaid, the Board considered that the applicant’s petition in relation to the Director’s 2017 Decision, which rejected the applicant’s claim on the ground of BOR 2 Risk under the USM, to have been filed within time.  Hence, the applicant could only challenge the Board’s Decision in refusing her late filing of the NOAP in relation to the Director’s 2016 Decision.

19.The applicant had given reasons in support of her application for late filing of the NOAP.  In sum, the applicant attributed the late filing of her NOAP to the lack of language assistance.

20.The Board found that the extraneous factual circumstances did not support the applicant’s contention that she was lacking in language assistance.  Almost the whole of her NOAP, save and except section 5, were written in English.  Moreover, the applicant was represented by the Duty Lawyer Service (“DLS”) at the time when the Director’s 2016 Decision was served on her.  She would likely be able to obtain the assistance of DLS to fill in her NOAP if she had made up her mind to lodge her appeal and petition there and then.  Alternatively, she could have approached any of the District Offices for help.

21.The Board also found that it was highly unlikely for the applicant not to have language assistance, through friends or the Hong Kong authorities, for a period of over 5 months.

22.The Board further considered the factual basis of the applicant’s case as set out in the Director’s 2016 Decision to see if there might be any special circumstances, by reason of which, it would be unjust not to allow late filing of the applicant’s appeal/petition.

23.It is clear that the Board was applying subsections (2) and (3) of Section 37ZT of the Immigration Ordinance, Cap 115 (as then stipulated before their amendments in 2021) in its determination on whether to allow the applicant’s application for late filing of the NOAP.

24.These provisions stipulated that the Board should take account of: (a) the statement of reasons stated in the application for late filing of the notice of appeal, and any accompanying documentary evidence in support; and (b) any other relevant matters of fact within the knowledge of the Board[5].

25.As held by the Court of Appeal, “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

26.In other words, the Board must consider the merits of the applicant’s appeal/petition in the determination of whether the late filing of the NOAP should be allowed or not.

27.From paragraph 15 of the Board’s Decision, it can be seen that the Board did take into account the factual basis of the applicant’s case as set out in the Director’s 2016 Decision.  The Board noted that the applicant based her claim on her fear of a loan shark in Vietnam.  The Board found no evidence to show that there would be a lack of reasonable state protection or lack of internal relocation options.  After consideration of all the information, the Board concluded that there was no reasonable prospect of success for the applicant’s intended appeal and petition of the Director’s 2016 Decision.  Hence, the applicant’s application for the late filing of the NOAP in respect of the Director’s 2016 Decision was not allowed.

28.From the Board’s aforesaid consideration and conclusion, it is clear that the merits of applicant’s appeal/petition had been considered.

29.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

30.Having rigorously examined the Board’s Decision, this court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

31.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

Dated the 20^th day of March 2026

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