Le Van Manh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 72/2022

[2026] HKCFI 1375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 72 of 2022

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 (Non-refoulement Claims) Connie Lee:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 October 2021 be refused.

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

Observation for the Applicant:

Introduction

1.By Form 86 filed on 19 January 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 4 October 2021 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 19 March 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. The Board’s Decision is contained in the hyperlink[1] below.

3.The Applicant did not attend the oral hearing. I have considered the Leave Application based on the materials available before me.[2]

Discussion

4.The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap. 4A.

5.In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[3]

6.First, the delay in question is about 2 weeks. However, the Applicant has not provided any explanation for the delay in his affirmation made in support of the Leave Application.

7.Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success. [4]

8.Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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 error of laws, procedural unfairness or irrationality in the decision of the Board.[5]

9.In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.[6] As matter stands, the Applicant only included the ground that the Board Decision has been reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

10.I have scrutinized the Board’s Decision and come to the view that the purported ground identified by the Applicant cannot be established or considered as valid or effective public law ground.

11.First, the ground merely consists of general assertions without particulars. The same cannot assist the Applicant.[7]

12.In particular, I do not agree that the Applicant was not given an opportunity to clarify his case.  He attended the hearing before the Board via video conferencing facilities and confirmed that he had no further information or evidence to add. During the hearing, he was asked a number of questions and was given more than sufficient opportunity to clarify his case. The Board was acutely aware of his claim that he would be harmed or killed by his creditor or his men because he could not repay the loan.

13.Second, the Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found his assertions to be inconsistent and dubious. The Board was therefore entitled to find that (1) the Applicant could not prove he would face any real or imminent risk of torture being inflicted on him; (2) the alleged feared ill-treatment would not reach the minimum level of severity; and (3) there was no reliable evidence to show reasonable state protection is not available and (4) he could relocate within Vietnam.

14.Third, there is simply nothing to indicate the Board had failed to take into account any relevant matters. I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

15.Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

16.I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.

Dated the 27^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