Nguyen Thanh Tung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 176/2022

[2026] HKCFI 1467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 176 of 2022

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.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

3.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

4.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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 3 March 2022, 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 21 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 6 September 2019 (“Director’s Decision”) refusing to reopen the applicant’s non‑refoulement claim after he had failed to return a completed Non-refoulement Claim Form (“NCF”) within the prescribed 28 days as required under s 37Y(2) of the Immigration Ordinance (“Ordinance”). Pursuant to s 37ZG(5) of the Ordinance, the applicant’s non-refoulement claim was deemed withdrawn. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000176_2022_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board and the Director as the proposed respondents and himself as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 5 March 2026, which the applicant attended 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

4.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.

5.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. The applicant’s Form 86 did not have any grounds. In [2] of his supporting affirmation, the applicant averred that the Board’s Decision had been reached unfairly without having allowed him an opportunity to clarify his case and the situation in his country.

6.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 stated that he had nothing to say. This court asked the applicant to elaborate on his allegation stated in [2] of the supporting affirmation. The applicant stated that he had nothing to add to what was already stated in the documents.

7.In the present case, the applicant’s filing of the notice of appeal (“NoA”) with the Board was late for over 3 months. In considering whether to allow the late filing of the NoA, the Board had considered the nature of the applicant’s claims that he feared harm from members of a triad gang in Vietnam if refouled. It had also considered his explanation to the Director that he thought his problem in Vietnam was solved and sought to return to Vietnam. After having evaluated all the information and circumstances, the Board was not satisfied that the applicant had sufficiently explained his delay in lodging the NoA. The Board concluded that there were no special circumstances that would be unjust not to allow the late filing of the NoA. The Board refused to allow the late filing of the NoA.  

Applicable legal principles governing

Late filing of notice of appeal to the Board under s 37ZT

8.Notwithstanding the amendments on 1 August 2021 to s 37ZT (2), the case law interpreting them will still apply in this case. In Re Khan Kamal Ahmed[3] and Re Qasim Ali[4] , the Court of Appeal held that under s 37ZT (2)(b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20].  Recently, the Court of Appeal in Re Doyaoen Josephine Biba[5] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2^nd Decision on BOR 2 risk. Hence, the Court of Appeal’s decision in that case can be distinguished.

9.When considering whether to allow the late filing of the notice of appeal, a Board is required to take into account “any other relevant matters of fact within the knowledge of the Board” under s 37ZT (2), which includes a duty to “take the merits of the applicant’s case into account”: See Re Khan Kamal Ahmed [17]-[20].

10.In the present case, before the Board refused the late filing of the NoA, it had considered the applicant’s statement that his life was still in danger in Vietnam. In the statement, the applicant further claimed that he borrowed money from a “black gangster” in Vietnam and that he had no money to repay that person and feared that he would be killed by that gangster. In considering the merits of the applicant’s claims, the Board had considered the applicant’s grounds in support of his request to re-open his case he submitted before the Director on 1 and 2 August 2019, in which the applicant stated that he thought his problem in Vietnam was solved. However, his family members told him that the triad members were still looking for him, and his problem in Vietnam still persisted. The Board had taken into account the applicant’s lack of explanation as why he still feared harm to return given his earlier statement that it was safe to return. In the present case, the Board had alluded to the applicant’s statement in the NoA that he feared the gangster. However, it had failed to assess the merits of the applicant’s claim that his life would still be subjected to the risk of harm from gangster. Thus, it would not be apparent to an objective reader of the Board’s Decision whether the Board had in fact considered the merits of the applicant’s claim.

11.As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality. The discretion to extend time for appeal is vested in the Board. A high standard of fairness obliges the Board to undertake an examination of the merits. Thus, the Board’s failure to take into account relevant facts or circumstances renders if it reasonably arguable that the Board’s Decision was erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness.

Whether to extend the time for the late filing of the Leave Application

12.In the present case, there is a substantial delay in the Leave Application. 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. Hence, the applicant late for almost 2 years.

13.Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.

14.Upon the court’s enquiry at the hearing for the reason for the delay, the applicant initially said that he did not receive the Board’s Decision. When asked for further details, he said he could not remember why he was late.

15.The delay in the filing of the Leave Application in the present case is lengthy and I do not find the applicant has provided good reason for the delay. The next key factor however that I need to consider is the question of merits. Since I have determined that the applicant’s Leave Application is reasonably arguable, the exercise of my discretion should therefore be guided by merits. In H v Director of Immigration[6] , the Court of Final Appeal held at [39] that that the aspect of delay is intrinsically bound up with whether leave to apply for judicial review should be granted, and the merits of the substantive application are relevant as to whether there is good reason for extending time.

16.Thus a decision as to whether to extend time to apply for leave for judicial review is inextricably tied to whether to grant leave and the merits of the intended judicial review.

17.For late applications by non-refoulement claimants for leave to apply for judicial review Board’s decisions, the court should give weight to the merits in deciding whether to extend time. In Re Siti Naisah[7], the applicants were an Indonesian mother and her Hong Kong-born daughter. The mother’s application to apply for leave to file the judicial review against a Board’s decision was late for more than 8 months. The Court of Appeal allowed the appeal of the minor daughter even though it rejected the mother’s explanation for the delay. In granting leave to the minor daughter, the Court of Appeal stated at [46]:

“In conclusion, we are of the view that it is reasonably arguable that the Judge should have extended the time for the 2nd applicant to apply for judicial review, and the 2nd applicant's intended appeal against the Judge's refusal to give leave to apply for judicial review enjoys reasonable prospect of success.”

18.Having regarding to the merits that I have determined in the above and the binding authorities above, and the requirement of a high standard of fairness, I should exercise my discretion to extend time to the applicant to file the Leave Application out of time.

19.There shall be an extension of time for the applicant to file the application for leave to apply for judicial review out of time.

Conclusion

20.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. There is a realistic prospect of success in the intended judicial review.

Orders

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

22.Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

23.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

24.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 24^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