Luong Thi Hong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1312/2022

[2026] HKCFI 5933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1312 of 2022

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 July 2022 of the Torture Claims Appeal Board (“the Board’s Decision”).  Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 7 October 2022.  Her application filed on 22 November 2022 is late for 1 month and 15 days.  This issue will be dealt with below.  

2.The applicant was absent at the hearing on 14 October 2026.  I shall deal with her application on the papers.

The applicant

3.The applicant is a national of Vietnam.  She is an illegal immigrant.  She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her debt.  Details of her story are set out in the Board’s Decision.  See hyperlink.  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001312_2022_files/the_Board's_Decision.pdf

The Director’s Decision

4.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

5.By way of Notice of Decision dated 6 October 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.  The applicant appealed to the Board.  

The Board’s Decision

6.On 2 June 2022, the Board conducted an oral hearing.  The applicant had given oral evidence and answered the Board’s questions. 

7.Having considered the applicant’s evidence, the Board found that the applicant’s manner of giving evidence was shifty, and her evidence was riddled with significant inconsistencies and implausibilities and was therefore not credible [102]; that she and her family members will not be subjected to any risk or danger if she returns to Vietnam [103]; that the state was not involved and state protection will be available to her if she returns to Vietnam [119]-[120]; and internal relocation is also viable [139]. 

8.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision. 

Application for leave to apply for judicial review of the Board’s Decision

9.The applicant filed Form 86 dated 22 November 2022 for leave to apply for judicial review of the Board’s Decision. 

10.In support of her application, the applicant attached a statement of ground to Form 86, in which she stated that the Board’s Decision is unfair and unreasonable without considering her right to life; that the adjudicator had placed too much reliance on the country-of-origin information without considering her personal background and experience; that the adjudicator had required her to answer questions that she was not in a position to offer any response. 

DISCUSSION

11.As mentioned in paragraph 1, this application is late.  In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal.  I shall consider the merits of the applicant’s case. 

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).  

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The grounds under paragraph 10 are bare assertions without any evidence in support.  They are not valid to challenge the Board’s Decision, which appears to bear no error of law or procedural irregularity, or is otherwise irrational. 

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The applicant has not given any explanation for her delay. 

16.In the circumstances, the applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. 

DISPOSITION

17.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.  

Dated the 28^th day of October 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