Tran Duy Hau v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 84/2022 [2026] HKCFI 1781 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 84 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:
Introduction 1.By Form 86 filed on 25 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 17 September 2021 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 28 May 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. Unless otherwise stated, the abbreviations used therein will be adopted here. 3.The Applicant attended the oral hearing scheduled before me. He reiterated that the outstanding loan and interest have by now accumulated to a huge amount which he is not capable to repay and the moneylender is still hunting for him. This however does not add substance to the Leave Application. 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.[2] 6.First, the delay in question is more than 1 month. However, the Applicant has not provided any explanation for the delay. 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.[3] 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.[4] 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.[5] 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.[6] 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 and confirmed the truth and correctness of his evidence as contained in WS, NCF, NCF 35 and ROI. During the hearing, he was asked a number of questions by the Board and was given more than sufficient opportunity to clarify his case. The Board was acutely aware of his claim that he would be harmed by the moneylender if he was to be deported back to Vietnam. 13.Second, the Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and concluded that his claims and assertions can be given no credence whatsoever. The Board was therefore entitled to find that (1) there was no ill-treatment by the moneylender and that the Applicant will not face a genuine and substantial risk of being subjected to ill-treatment if he is to return to Vietnam; (2) any alleged harm by the moneylender cannot reached a minimum level of severity; (3) sufficient and reasonable state protection is readily available and (4) internal relocation is in any event a viable alternative for the Applicant. 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 13th day of April 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 [1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000084_2022_files/the_Board's_Decision.pdf [2] H v. Director of Immigration (2020) 23 HKCFAR 248 at [17] to [22] & [36] to [44] citing AW v. Director of Immigration [2016] 2 HKC 393 (CA) at [27] to [28] & [35]. [3] Peter Po Fun Chan v. Winnie Cheung & Anor (2007) 10 HKCFAR 676. [4] Re Zunariyah [2018] HKCA 14 at [23]; Nupur Mst v. Director of Immigration [2018] HKCA 524 at [14]. [5] Ho Loy & Anor v. Director of Environment Protection, HCAL 21/2015 (Unrep.) 22.12.2016 at [142] [6] Haider Khalil [2021] HKCA 223 at [16]. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment