Chu Van Quynh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 317/2022 [2026] HKCFI 2397 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 317 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:
Observations for the Applicant: Introduction 1.By Form 86 filed on 10 May 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 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 25 September 2020 (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. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein. 3.The Applicant attended the oral hearing but had nothing specific to add in respect of 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 around 1 month. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in his affirmation. When asked why the Leave Application was lodged out of time, the Applicant then said it was because he received the Board’s Decision late but he could not recall when he received the same. Obviously, I do not accept such bare assertion with no supporting document whatsoever. In particular, the same is not even mentioned in his own affirmation. 7.Second and more importantly, 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.[4] 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. As matter stands, apart from contending the Board’s Decision and the Director’s Decision are wrong or unsafe, the Applicant has failed to identify any valid or effective public law grounds.[5] 9.In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality. 10.The primary decision makers are the Director of Immigration and the Board and 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 of the Immigration).[6] 11.The Board was acutely aware of the Applicant’s claim that he was in fear of being harmed or killed by his creditors if he were to return to Vietnam as he had accrued a large unpaid debt. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found his account of the core issues lacked credence. The Board therefore rejected his case of the alleged fear, assault, injuries and the reason for the delay in applying for the re-opening of his non‑refoulement applications. In any case, the Board did and was entitled to find (1) there was no real intention on the part of the creditors to inflict serious bodily harm or kill him; (2) he faces no risk of life danger or a real or genuine risk of torture; (3) he will be able to access state protection and (4) the question of relocation does not even arise. 12.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. 13.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 14.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 30th 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/HCAL000317_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]. [5] Ho Loy & Anor v. Director of Environmental Protection, HCAL 21/2015 (Unrep.) 22.12.2016 at [142] [6] Nupur Mst v. Director of Immigration [2018] HKCA 524 at [14]. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment