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HCAL 502/2024
[2026] HKCFI 4882
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 502 OF 2024
BETWEEN
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Nguyen Cong Pho |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
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 the name of the putative interested party be amended to “Director of Immigration”.
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 21 March 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 22 December 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/HCAL000502_2024_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director dated 12 October 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named “toture claims Appeal Board” and “Director of Immigration Department” as the putative respondents and named himself as the putative interested party.
4. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he feared being harmed or killed by his creditor Nguyen Khac Son as he was unable to repay a loan of 300 million Vietnamese Dong.
Disposal on paper
8. 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
9. 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).
10. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 March 2024.
11. 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
12. First of all, the applicant’s alleged risks from his creditor had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
13. 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).
14. Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 December 2023. The applicant was present and was thus given the chance to present his case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s claims and its assessment on the applicant’s risks against each of the applicable grounds under the USM were laid out in paragraphs 84 to 110 of the Board’s Decision, and it is not necessary to repeat the same here.
17. In gist, despite the inconsistencies and embellishments in the applicant’s claims, the Board accepted the basic information of the applicant’s case. However, the Board found that there were only verbal threats to kill, and no serious harm, if not harm, was inflicted on the applicant by the time he fled Vietnam for Hong Kong. On the only occasion of attack, the creditor had ample opportunity to seriously harm the applicant, but he did not do so. The Board did not see any real chance that the applicant would be killed or otherwise seriously harmed by his creditor if he returned to Vietnam.
18. Moreover, the Board found that the applicant’s problem was purely private matters relating to the dispute with the creditor on outstanding loan repayment. The applicant was not persecuted for any of the RC[1] reasons. The Board did not accept that the ill-treatment that the applicant claimed to have suffered attained a minimum level of severity. The creditor was a non-state actor and the applicant never reported the threat or attack by the creditor to the police. There was no evidence of state acquiescence in the applicant’s case.
19. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
20. Moreover, the Board had discussed the issue of internal relocation in details in paragraphs 111 to 120 of the Board’s Decision as a matter of caution. The Board had given full reasons for the conclusion that it would not be unreasonable or unduly harsh to require the applicant to relocate to Hanoi or Ho Chi Minh City or cities of its equivalent to avoid the risks in question, if any.
21. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
22. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of August 2026
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( Gladys LEE )
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 26/08/2026
Applicant’s ref. no:
Nil |
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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: 26/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 22323
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 784/23 (Formerly RBCZ 5000764/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
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