Case Document

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HCAL 557/2024

[2026] HKCFI 5418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 557 OF 2024

BETWEEN

	Pham Viet Duc	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 oral submissions by the applicant or counsel 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 5 April 2024, 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 18 January 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/2024/HCAL000557_2024_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 17 December 2021 (“the Director’s Decision”), which rejected his subsequent claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism.

3.By section 37ZS of the Immigration Ordinance, Cap 115 (“the Ordinance”), the deadline for filing a notice of appeal with the Board to lodge an appeal against the Director’s Decision was 3 January 2022. The applicant filed his NOAP 14 January 2022, ie 11 days after the deadline. By the Board’s Decision, the Board refused the applicant’s application for late filing of the NOAP.

Amendments

4.In Form 86, the applicant named “toture claims Appeal Board” and “Director of Immigration Department” as the putative respondents and did not name any putative interested party.

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.This court therefore 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

7.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.

8.However, the applicant filed Form 86 on 5 April 2024, which was more than 14 months after the Board’s Decision (made on 18 January 2023). The applicant was hence late for more than 11 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.

9.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.

10.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

11.A delay of more than 11 months is very substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below.

12.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

13.However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

14.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.

Disposal on paper

15.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

16.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).

17.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 5 April 2024.

18.In the said affirmation, the applicant merely stated that he would face a genuine and substantial risk of being subject to torture or even killed by his creditor and his men since he was insolvent.

Discussion

19.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).

20.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.

21.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.

22.This court is aware that section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, (“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).

23.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.

24.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.

25.The applicant claimed that his phone had been out of order for days at the material time, he was only able to “hear the call from the Immigration Department” once it was fixed on 14 January 2022.

26.However, the Board found that the reason proffered by the applicant in support of his late application was inadequate for demonstrating why he had a good reason to file his NOAP out of time. The Board considered that it was unclear what call would the applicant have to take first before he could file a NOAP with the Board, even at the expense of filing it out of the statutorily prescribed deadline; nor in general, would it be necessary for a non-refoulement claimant whose application was rejected by the Director to first receive a telephone call of any kind from the Immigration Department first before he could file a NOAP.

27.The Board found that the reasons proffered by the applicant fell short of the duty imposed upon an applicant under section 37ZT(1) of the Ordinance to provide a statement of reasons for failing to file a notice within the statutorily prescribed deadline and provide evidence in support.

28.For the same reasons, the Board was not satisfied that the applicant’s delay in filing the NOAP was caused by anything beyond his control. The applicant had offered no explanation, nor proffered any evidence, that his inability to make the call he claimed to be necessary was a result of circumstances beyond his control. There was also no evidence to show that the applicant had exercised all due diligence to file the NOAP within the period specified, but failed to do so because of circumstances beyond his control for the purpose of satisfying the requirements under section 37ZT(3)(a) and (b) of the Ordinance.

29.Thus, the Board refused the applicant’s application for late filing of the NOAP.

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

31.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.

32.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

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

Dated the 23^rd 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 his 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: 23/09/2026 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: 23/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 19710 Director of Immigration Putative interested party’s ref. no.: QA T/C 2075/21 (formerly RBCZ 5000266/21) (T1I104) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)