Case Document

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HCAL 139/2026

[2026] HKCFI 4914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 139 OF 2026

BETWEEN

	Dinh Van Trong	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as Respondent and the Director of Immigration as Interested party.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Vietnam who entered Hong Kong illegally on 26 January 2015 and was arrested by police on 27 January 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by his creditor for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thuy Nguyen City, Hai Phong, Vietnam. After leaving school he worked as a transportation worker and a farmer to make his living, married his wife and raised a family with 3 children in his home district.

3.In 2010 he started his own seafood products farming business, and in 2012 for expanding his business he borrowed 2 loans on separate occasions from the same money‑lender in his home district, with both loans to be repaid within one year and with monthly interests payments which he initially managed to make from his business income.

4.However, in March 2013 he lost his business after his fish stocks were killed as his ponds had been contaminated by polluted water, and when he started to default in his loans repayments, his creditor then sent men to threaten him, and after being beaten by those men violently and with a warning that they would kill him next time if he still failed to repay his loans, the Applicant became fearful for his life and fled to Quang Ninh.

5.On 26 July 2014 the Applicant departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non‑refoulement claim for protection, and after numerous delays in the process of his claim, the Applicant eventually completed his Non-refoulement Claim Form (“NCF”) on 13 October 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While released on recognizance pending the determination of his claim, the Applicant was arrested by police on 4 September 2024 for undertaking unauthorized employment and using faked identity card, and was subsequently convicted and sentenced to prison for 18 months, and upon his discharge from prison he was then being detained in Castle Peak Bay Immigration Centre (“CIC”) pending the determination of his claim.

7.By a Notice of Decision dated 7 November 2025 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 105 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his creditor to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was deemed to have been filed outside the 14-days period after notice of the Director’s decision was given to him as required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal by taking into account only of the statement of reasons stated in the application for his late filing and the evidence, if any, relied on in support of those reasons, and that the Board may, as provided by Section 37ZT (3), allow the late filing if it is satisfied that the Applicant had exercised all due diligence to file his notice of appeal within the required period but failed to do so due to circumstances beyond his control.

10.By a Decision[1] dated 19 December 2025 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding the deadline for its filing to be 24 November 2025 but that his notice of appeal dated 27 November 2025 was only received by the Board on 4 December 2025, that his reason for the delay stated in Section 5 of his notice of appeal of “For the time being, I have been detained at CIC, I have already received your letter” was not a valid or acceptable reason for his delay as the decision was given on the same day of 7 November 2025 to his lawyer at DLS on his behalf, that he did not provide any documentary evidence to prove that his failure to file his notice of appeal within the required period was due to circumstances beyond his control, and that the Board had no basis on which to exercise any statutory discretion to extend the time limit for the filing of his notice of appeal ([6] – [10] of the decision).

11.On 13 January 2026 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before and stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge of the Board’s decision, nor did he request any oral hearing for his application.

12.Nevertheless, given the serious implications of what is at stake in proceedings of this nature and the denial of the Applicant’s right for his non-refoulement claim to be assessed by the Board as part of the 2-tier screening process under the Unified Screening Mechanism (“USM”) due to what appears to be some insignificant delay in the filing of his notice of appeal under the circumstances of his then situation, high standards of fairness require that the Board’s reasons for refusing to exercise its statutory discretion to allow the late filing of the Applicant’s notice of appeal be scrutinized by the Court.

13.While the Board is no longer required to take into account any other matters of fact of an applicant’s case or the merits of his appeal, as previously found to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, after the relevant Section 37ZT of the Immigration Ordinance was amended on 1 August 2021 to the effect that the Board is required to only take account of the statement of reasons stated in the notice of appeal for its late filing and its supporting evidence as stipulated by subsection (2) thereof, and that the Board may exercise its discretion to allow the late filing only if it is satisfied that the applicant had exercised all due diligence but failed to do so because of circumstances beyond his control: Section 37ZT (3) of the Ordinance.

14.In the Applicant’s case, firstly and on the basis of the Board’s own finding, that the delay of his notice of appeal received on 4 December 2025 by the Board from the deadline for its filing on 24 November 2025 amounts to 10 days which may not in my view be considered as significant or substantial given his circumstances including no longer had legal representation from DLS and being detained by the Immigration Department at CIC where incoming and outgoing mails for inspections may take additional times, all of which the Board would in my view be required to take into consideration in the exercise of its discretion under Section 37ZT(3) but did not appear to have done so.

15.Secondly, as also found by the Board, the notice of appeal was dated 27 November 2025 which was only 3 days after the deadline, and yet it was only received by the Board a further 7 days later on 4 December 2025, and hence in its consideration whether to allow its late filing, the Board should have made proper enquiry as to the reason of such further delay, and that whether it was the Applicant himself to blame or that it was for some other reasons, but the Board again did not appear to have done so before arriving at its decision not to allow the late filing.

16.Similarly and as stated in [8] of its decision, if it was relevant for the Board to find, as it did when it found no evidence to show that there was any delay on the part of the Director in sending the decision to DLS for the Applicant ([8] & [10] of decision), given that the Applicant was then in detention at CIC and no longer had legal representation, it would be in my view relevant, and as also required by high standards of fairness, that the Board should have also made enquiry as to when exactly was the decision given by DLS to the Applicant at CIC before arriving at its decision not to allow the late filing of his notice of appeal.

17.Equally relevant if not more is that on the Applicant’s notice of appeal, in addition to the receipt date of 4 December 2025 as noted above, it also showed an earlier date of receipt on 18 November 2025, which was then well before the deadline, but which was for some reason being crossed out, and in my view it was something both significant and relevant for the Board to make proper enquiries, and that if it did so that it was to do with the notice of appeal not having been duly completed or signed as required by Section 37ZS (2) of the Ordinance, and thus had to be returned to the Applicant at CIC for his signature, then the Board should have stated so in its decision and to explain why it was not considered as part of the circumstances beyond the Applicant’s control to exercise all due diligence to file his notice of appeal within the required period.

18.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision not to allow the late filing of his notice of appeal is reasonably arguable on the grounds that the Board (1) failed to properly or sufficiently consider the Applicant’s statement of reasons for his late filing and/or (2) failed to apply high standards of fairness in its consideration and refusal to allow the late filing of his notice of appeal, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all relevant documents on the Board as respondent and the Director as interested party.

Dated the 27^th day of August 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27 August 2026 Dinh Van Trong Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 27677 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1961/25 (formerly RBCZ 5001857/25) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)