Nguyen Tien Tai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 274/2022 [2026] HKCFI 2392 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 274 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:
Observation for the Applicant: Introduction 1.By Form 86 filed on 28 April 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 14 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 23 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. 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 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 14 days. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in his affirmation. 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.The ground merely consists of general assertions without particulars. The same cannot assist the Applicant. [7] In particular, I do not agree that the Applicant was not given an opportunity to clarify his case. He attended the oral hearing before the Board and made oral submissions thereat to clarify his case. 12.The Board was acutely aware of his claim that if refouled, he will be at risk or at harm/being killed by the Creditor as he owed him a loan that he had no money to repay. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board was of the view that the Applicant had not submitted any evidence to support his claim. The Board was therefore entitled to find that (1) the harm if any, caused by the Creditor and his fellows on the Applicant was of low intensity and frequency and not as real and imminent as he so asserted; (2) it is unconvincing that the Creditor and his fellows intend to kill the Applicant and ill-treatment by them (if any) had not attained a minimum level of severity; (3) there is no evidence to show that reasonable state protection will not be available; and (4) internal relocation is viable. 13.There is 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. 14.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 15.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/HCAL000274_2022_files/the_Board's_Decision.pdf [2] Re Abdus Salam [2019] HKCA 1091. [3] 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]. [4] Peter Po Fun Chan v. Winnie Cheung & Anor (2007) 10 HKCFAR 676. [5] Re Zunariyah [2018] HKCA 14 at [23]; Nupur Mst v. Director of Immigration [2018] HKCA 524 at [14]. [6] Ho Loy & Anor v. Director of Environmental Protection, HCAL 21/2015 (Unrep.) 22.12.2016 at [142] [7] Haider Khalil [2021] HKCA 223 at [16]. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment