Vu, Thanh Duong v. Torture Claims Appeal Board
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HCAL 1023/2026 [2026] HKCFI 4399 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1023 OF 2026
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 4 June 2026, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 July 2017 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). 3.The Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 April 2016 (“the Director’s 2016 Decision”), which rejected the applicant’s non-refoulement claim on the grounds of BOR 3 Risk[1], Torture Risk[2] and Persecution Risk[3]under the Unified Screening Mechanism (“the USM”). 4.The Board also determined the applicant’s petition (which, in fact, was non-existent) against the Further Decision of the Director dated 27 February 2017 (“the Director’s 2017 Decision”), which rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk[4] under the USM. 5.Hence, the Board confirmed both the Director’s 2016 Decision and the Director’s 2017 Decision. Amendments 6.In Form 86, the applicant named “The Director of immigration Tourture claims Appeal Board” as both the putative respondents and the putative interested parties. 7.In fact, only the Board should be the putative respondent and only the Director should be the putative interested party. 8.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. Late application 9.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 10.However, the applicant filed Form 86 on 4 June 2026, which was more than 8 years and 10 months after the Board’s Decision (made on 5 July 2017). The applicant was hence late for more than 8 years and 7 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 11.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
12.The applicant did not make an application for extension of time when he filed the Leave Application. 13.At the oral hearing before this court on 23 July 2026, the applicant explained the delay by saying that he had tried previously to file an application. However, he could not do so as he did not have recognizance paper. The applicant explained that he had used his bail document for his regular reporting before the issuance of recognizance, which only happened in 2022. 14.The applicant said that he was arrested due to illegal remaining in Hong Kong and also for selling obscene articles in 2014. He was detained in Lai Chi Kok Reception Centre for one year. Thereafter, he used his bail document for reporting. 15.When this court asked him why he did not file the Leave Application after he received his recognizance paper, the applicant said that he moved during the Covid-19 pandemic, he did not receive the Board’s Decision and he did not know what to do at that time. 16.He said that during 2017 to 2022, he did not need to report to the Immigration but only needed to report to the court once every three months. Although he needed to report to the Immigration Department every one and a half month from 2022 to 2026, he only needed to sign and then he was asked to leave. No one informed him that the Board’s Decision had been made and he never asked about it during that time. 17.The applicant then said that he only obtained the Board’s Decision in April 2026 when he was detained in Castle Peak Bay Immigration Centre (“CIC”) and sought assistance from the welfare officer there. The welfare officer also helped him to file the Leave Application. 18.A delay of more than 8 years and 7 months is certainly very substantial. The explanation given by the applicant regarding his failure to produce his recognizance before 2022 because it was not issued to him could be true, as the Director could only furnish this court the applicant’s recognizance issued on 20 December 2022. 19.However, the lack of recognizance could not explain why the applicant did not receive the Board’s Decision in 2017, before the Covid-19 pandemic when he alleged moved. The applicant could and should have enquired with the Immigration Department or the Board regarding his appeal/petition on his own volition. However, he did not do so. 20.The very significant delay without fully satisfactory reasons would not normally justify an extension of time for the applicant to file the Leave Application. 21.However, as discussed below, this court finds that the applicant’s case does have merits and is therefore arguable. In view of the high standards of fairness required in the handling of cases concerning non-refoulement claimants, this court would grant an extension of time for the applicant to file the Leave Application on 4 June 2026. The applicant’s case 22.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 23.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by a moneylender named Hung due to the applicant’s inability to repay the loans obtained from her. 24.The applicant also claimed that he would be subject to grave consequences from the Vietnamese Government and pursued by the local authorities because he had torn down a line of six to seven cotton banners that contained slogans about the Communist Party in the Public Security Office, after the officers there responded indifferently to the applicant’s request for help and told the applicant to solve the problem by himself, and the officers screamed at the applicant and threatened to arrest him for showing disrespect to the country. Oral hearing 25.The applicant requested for an oral hearing of the Leave Application and his case was heard on 23 July 2026. 26.At the hearing, the applicant said that he wrote all together four letters to this court on 17, 18 and 22 June 2026 and 7 July 2026 respectively. However, this court only received three letters dated 17, and 18 June 2026 and 7 July 2026 respectively from the applicant, but not the one dated 22 June 2026. Nevertheless, after clarifying with the applicant, these letters were written by the applicant to ask this court to consider and process the Leave Application. As the contents of these letters did not contain any valid grounds for his intended judicial review, it is not necessary for this court to deal with them. 27.When this court asked the applicant for the grounds of his intended judicial review, the applicant replied that: (1) he did not have any relatives left in Vietnam and he had no place to reside there; (2) his son was arrested by his creditor in Vietnam in December 2025 and he did not have any information about him or whether he was still alive; (3) he had blood pressure problem and a follow-up surgery needed to be done in a Hong Kong hospital; (4) he had lived with his girlfriend for two years in Hong Kong and she could sponsor his bail application; and (5) he would like to be released in order to file a case for his son and also to receive his medical treatment outside prison. 28.This court also invited the applicant to elaborate on his supporting affirmation dated 4 June 2026, which stated that he was not satisfied with the Board’s Decision as it was not fair. The applicant said that there was only limited space on the affirmation form and therefore he could only write a summary. He in fact wanted to state that he had no relatives left, no place to reside and his life would be in danger if he was to return to his country. He would like to stay here as a refugee. If his application was refused, he would submit the application to a higher court. Finally, he asked to be released for him to file a case for his son. Grounds for judicial review 29.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 30.The applicant did not advance any ground in his Form 86. 31.As aforesaid, he only mentioned in his supporting affirmation that he was not satisfied with the Board’s Decision as it was not fair. He did not really elaborate on why the Board’s Decision was not fair but told this court the matters that were mentioned in paragraphs 27 and 28 above. Discussion 32.First of all, none of the matters mentioned by the applicant in his supporting affirmation and at the oral hearing could amount to any valid grounds for judicial review. However, this courts finds several problems in the Board’s Decision. 33.First, this courts notes that the applicant had only filed a Notice of Appeal/Petition in respect of the Director’s 2016 Decision, but not the Director’s 2017 Decision. However, in paragraph 5 of the Board’s Decision, the Board was referring to the Director’s 2017 Decision and stated that:-
34.It was wrong for the Board to assume that there was an appeal/petition against the Director’s 2017 Decision, when in fact there was no such Notice of Appeal/Petition lodged by the applicant. 35.More importantly, the applicant was actually absent at the Board’s hearing on 2 June 2017, and hence it was impossible for the applicant to agree “at the hearing”, as alleged by the Board, that his appeal/petition against the Director’s 2017 Decision could be heard together with his appeal/petition against the Director’s 2016 Decision. 36.Without the applicant filing any Notice of Appeal/Petition in respect of the Director’s 2017 Decision or his consent to the Board to hear his petition in respect of the Director’s 2017 Decision, the Board should have no jurisdiction to re-assess the applicant’s BOR 2 Risk that had already been determined by the Director’s 2017 Decision. 37.The Board also made a mistake as to the applicant’s presence or not in paragraph 6 of the Board’s Decision, in that the Board stated as follows:-
38.The Board stated that the applicant both “appeared” and “was absent” at the same time. It is therefore not clear whether the applicant did appear at the hearing to agree that the Board could deal with his appeal/petition against the Director’s 2017 Decision or whether he was absent at the hearing. 39.Moreover, this court finds that the second limb of the applicant’s claim, namely that he would be subject to grave consequences from the Vietnamese Government for showing disrespect to the country because he had torn down a line of six to seven cotton banners that contained slogans about the Communist Party in the Public Security Office, might not have been assessed properly. 40.In paragraph 21 of the Board’s Decision, the Board agreed that the ill treatment the applicant feared he would suffer (ie tortured or killed by Hung, her associates or the local authorities) reached the necessary threshold of “minimum level of severity”. However, in paragraph 22(c) of the Board’s Decision, the Board made a seemingly contradictory finding regarding the second limb of the applicant’s claim as follows:-
41.In making the finding in paragraph 22(c) of the Board’s Decision, the Board did not seem to have considered any relevant country of origin information as to whether the applicant’s act in the Public Security Office could indeed have grave consequences from the Vietnamese Government or not. 42.This court is of the view that without any relevant country of origin information, the Board’s finding that the applicant would be dealt with in accordance with the local law and any lawful sanction the applicant might receive would not amount to ill treatment or death was simply the Board’s assumption which might not be applicable to the situations in Vietnam. Thus, the Board’s finding in this regard might be unreasonable or irrational. 43.In fact, the Board’s finding on viability of internal relocation for the applicant could be flawed too, as he was not merely pursued by his creditor, but also by the police or the authorities. 44.This court therefore finds that there could be errors of law and irrationality in the Board’s Decision as discussed above, which are sufficient for the applicant’s intended judicial review to be reasonably arguable. 45.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review. Conclusion 46.For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 4 June 2026, leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision and the applicant is directed to issue an originating summons for the intended judicial review on or before 19 August 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court. Dated the 5th day of August 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] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment