Case Document

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HCAL 1102/2023

[2026] HKCFI 5266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1102 OF 2023

BETWEEN

	Nguyen Van Tu	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 (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 6 July 2023, 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 23 March 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001102_2023_files/the_Board's_Decision.pdf

2.The Board’s Decision was in respect of the applicant’s late filing of his Notice of Appeal/Petition (“the NOAP”) against the decision of the Director of Immigration (“the Director”) dated 22 April 2022 (“the Director’s Decision”), which rejected his non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.

3.The Board only received the NOAP on 22 July 2022, which was out of time. In the Board’s Decision, the Board refused the applicant’s application for the late filing of the NOAP.

Amendments

4.The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86.

5.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

6.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

7.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

Late application

8.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.

9.However, the applicant filed Form 86 on 6 July 2023, which was 3 months and 13 days after the Board’s Decision (made on 23 March 2023). The applicant was hence late for 13 days 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.

10.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. Since the applicant was absent at the oral hearing before this court, no reason was given by the applicant for the delay at all.

12.Although a delay of 13 days is not substantial, there is simply no reason for this court to grant an extension of time to the applicant to file the Leave Application when no explanation was given.

13.More importantly, there is no merit of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

14.However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

15.It is not necessary for this court to state the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge in respect of the Board’s Decision in refusing his application for late filing of the NOAP.

16.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor due to his inability to repay his loan.

Oral hearing

17.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 10 September 2026.

18.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

19.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

20.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).

21.The applicant annexed a document with the title “Grounds on which relief is sought” to his Form 86. The contents of the said document were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

22.As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

23.There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application.

24.In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account.

25.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions.

26.The applicant’s complaints and allegations in the aforesaid grounds (ie paragraphs 3 and 4 under the heading “Grounds” of the said document) are simply unfounded.

27.As aforesaid, the Board’s Decision concerns only his application for late filing of NOAP. The Board made its decision without a hearing pursuant to section 37ZT(2) of the Immigration Ordinance, Cap. 115 (“the Ordinance”). Thus, the Board did not question the applicant at all at a hearing. The Board’s Decision has nothing to do with COI either.

28.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.

29.In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational. In fact, the Board did not dismiss his appeal/petition. It only dealt with his application for the late filing of NOAP as aforesaid.

30.The Board had in fact provided full reasons in the Board’s Decision in rejecting the applicant’s application for late filing of the NOAP.

31.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

32.Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case, or are completely unfounded.

33.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

34.Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. His alleged danger in his own country had already been assessed but rejected by the Director.

35.However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

36.This court is aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021. The present section 37ZT(2) no longer requires the Board to consider “any other relevant matters of fact within the knowledge of the Board”. As held by the Court of Appeal, this phrase required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95). However, after the amendment, the Board no longer needs to deal with merits as of 1 August 2021 (see Re Mohammed Aslam [2025] HKCA 914).

37.As the applicant’s case was not covered by the old section 37ZT(2)(b), it was correct for the Board not to consider the merits of the applicant’s case. The current section 37ZT(2) only requires the Board to take account of the statement of reasons stated in the application for late filing of the NOAP and the evidence relied on in support of the reasons.

38.As can be seen from the Board’s Decision, the Board did fully consider the circumstances of the applicant, the statement of reasons stated in the applicant’s application for late filing of the NOAP and the lack of evidence in support of the reasons.

39.As can be seen from the Board’s Decision, the applicant claimed that his memory was affected due to his being beaten and threatened by the lenders.

40.The Board considered that there was no evidence to support that there was a delay on the part of the Director in serving the Notice of Decision to the applicant. The applicant had not given any evidence to support that his memory was affected which had resulted in his late filing of the NOAP. The applicant also did not submit any evidence in support to satisfy the Board that he had exercised all due diligence to file the NOAP within the prescribed period but failed to do so because of circumstances beyond his control. The Board thus found no basis on which to exercise any statutory discretion to extend the time limit for the applicant to file the NOAP.

41.This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

42.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.

43.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

44.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

Dated the 16^th day of September 2026

( Gladys LEE )
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/Handed to the applicant/the applicant’s solicitors on: 16/09/2026 Applicant’s ref. no: Nil		Sent/Handed 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: 16/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20678 Director of Immigration Putative interested party’s ref. no.: QA T/C 147/22 (Formerly RBCZ 5000506/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)