Vu Van Lai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 143/2025, [2026] HKCA 1885

On appeal from [2024] HKCFI 2161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 143 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2225 OF 2023)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 5 September 2024, upon the applicant’s application to withdraw his leave application, Deputy High Court Judge K W Lung dismissed his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.On 23 January 2025, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed on 6 March 2025[2].

3.On 31 July 2025, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the order dated 6 March 2025.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 5 September 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.The applicant is a national of Vietnam.  He had previously entered Hong Kong illegally and lodged a non-refoulement claim in 2016.  He voluntarily returned to Vietnam in 2018.  He entered Hong Kong illegally again and lodged another non-refoulement claim in 2021.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and his men.

The decisions of the Director and the Board

5.By a Notice of Decision dated 17 March 2023, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 24 August 2023.  As the applicant was never physically harmed by the creditor, the Board found that the alleged harm had not attained the requisite minimum level of severity.  The Board also found significant discrepancies and implausibility in the applicant’s story.  Therefore, the Board held that his stories about the loan and harm from the creditor are fabricated.  It further assessed that the Vietnamese government is able or willing to provide reasonable protection and internal relocation alternative is available to the applicant in Vietnam.  Thus, the Board dismissed the appeal on 3 October 2023.

The intended judicial review

7.On 12 December 2023, the applicant filed a Form 86 and an affirmation in HCAL 2225/2023 to seek leave to bring judicial review against the Board’s decision.  On 11 July 2024, he filed an affirmation to request to withdraw his application, saying that it is now safe for him to return to his country.  Therefore, the judge dismissed the application’s leave application on 5 September 2024.

Grounds of intended appeal

8.The applicant stated the following grounds in his supporting affirmation and written statement:

(1)  The decision of the court was reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;

(2)  It was unsatisfactory for the court to rule that the applicant had no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life would be seriously threatened or he would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people;

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(5)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(6)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

Analysis

9.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

10.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 5 September 2024 and the applicant was late by more than 4 months when he took out the summons at the court below on 23 January 2025.  He did not give any explanation for the delay in his supporting affirmation.

11.As the applicant’s delay is not excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v The Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

12.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.The applicant filed an affirmation with the Court of First Instance on 28 August 2024 seeking to re-open his case despite his previous application for withdrawal.  He explained that he intended to sell his land to pay off his debt but was unable to sell the land so it is unsafe for him to return to Vietnam.  The judge was aware of this affirmation as he made a note on a copy of it on 29 August 2024 that “No action is needed”.  When he came to decide the application for leave to apply for judicial review on paper on 5 September 2024, the CALL-1 form referred to the affirmation of 11 July 2024 (in which the applicant stated he would apply to withdraw his application because he wanted to return to his home country) but not the subsequent affirmation of 28 August 2024.  It is doubtful if the judge had considered the subsequent affirmation in dismissing the leave application.

14.We have reviewed all the papers and submissions made by the applicant.  Despite the apparent omission of the judge as aforesaid, we consider there is no prospect of success in the applicant’s intended application for judicial review.  The grounds of his intended challenge raised in the court below as well as his grounds against the decisions of the Director and the Board stated in the present application are just bare assertions without evidence in support.  He failed to adduce any evidence to refute the Board’s findings and failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.

15.For the above reasons, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 5 September 2024 and dismiss the summons filed on 31 July 2025.

The Applicant, acting in person