Nguyen Quang Duc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 977/2022 [2026] HKCFI 4141 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 977 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 Levy:
Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 28 June 2021 (“Director’s Subsequent Decision”) refusing the applicant's request (“Request”) for making a subsequent claim under s. 37ZO of the Immigration Ordinance (Cap 115). 2.In the applicant’s Form 86, the applicant has erroneously stated the year of the date of the Director’s Subsequent Decision as “2022” instead of “2021”. In the circumstances, the Form 86 shall be accordingly amended on the court’s own motion. 3.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 14 July 2026. A notice of hearing with a reminder of the consequence of absence dated 18 June 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court. 4.The following background is taken from the Director’s Subsequent Decision. Background 5.On 11 January 2017, the Director rejected the applicant’s (along with his father’s) non-refoulement claim on all applicable grounds[1] (“Director’s Decision”). The applicant was 17 at the time of the making of the non-refoulement claim. Hence, he was still a minor. The basis of his claim (and of his father) was that, if refouled to Vietnam, his father would be harmed by the Vietnamese authorities due to the land compensation issue, and the applicant would be ill-treated by the creditors for outstanding debts borrowed by his mother. On 19 March 2018, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeal against the Director’s Decision. On 17 August 2018, the applicant was voluntarily repatriated to Vietnam. 6.On 17 November 2020, the applicant was arrested by the police, and he claimed to have illegally entered Hong Kong in February 2020. On 25 March 2021, the applicant made the Request. The basis of the applicant’s claim in the Request was that, if refouled, he would be harmed or killed by a creditor for an outstanding loan, which he borrowed to enable him to open a boutique after he returned to Vietnam. Discussion 7.The leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicant averred that internal relocation was not reasonably feasible for him and the Director had failed to consider it. The applicant’s supporting affirmation did not provide any grounds. The statutory provisions on subsequent claims 9.Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:
10.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] 11.The applicant was not legally represented in the Request, and did not submit further information and evidence in support of the Request as Director had requested. Having considered the applicant’s claim, the Director found that the applicant’s new fear was still originated from an inability to repay outstanding debt as his previous claim. Having regard to the findings made in the Director’s Decision and the Board’s Decision, the Director found that there were no sufficient grounds to believe that there was a significant change of circumstances that would negate the availability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success, thus refused the Request. 12.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds set out in Form 86 were vague and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to the Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5]. Whether to extend time for the late application 16.Another matter I need to consider is the delay. 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 of the Board’s Decision. The applicant was late for about 1 year. 17.The applicant provided no explanation at all for the 1 year’s delay. In the circumstances, the court refuse to exercise its discretion to grant him an extension of time to file the Leave Application. Orders 13.The Form 86 be amended on the court’s own motion. 14.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time. 15.The applicant’s application for leave to apply for judicial review be dismissed. Dated the 31st day of July 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] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [2] Re Zunartyah [2018] HKCA 14 at [23]. [3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. [5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment