DINH VIET SON v. TORTURE CLAIMS APPEAL BOARD

HCAL 2603/2025

[2026] HKCFI 3192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2603 OF 2025

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 in open court;

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 extension of time to file the application for leave to apply for judicial review be refused.

3.  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 25 November 2025, 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 6 March 2025 (“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/2025/HCAL002603_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection in Hong Kong was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 November 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and the Director as both the putative respondents and the putative interested parties.

4.  In fact, only the Board should be the putative respondent and only the Director should be the putative interested party.

5.  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 party at all.

6.  Thus, this court 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”.

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 25 November 2025, which was more than 8 months after the Board’s Decision (made on 6 March 2025). The applicant was hence late for more than 5 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.  In a document with the title “Grounds on which Relief is Sought” annexed to his supporting affirmation dated 8 October 2025, the applicant asked this court to exercise its discretion to allow him to make the Leave Application out of time, and he gave the reasons for his late filing of the Leave Application. This court will treat it as an application for extension of time to file the Leave Application.

11.  Essentially, the applicant was saying that he was serving sentence in Pik Uk prison at the material time and he did not have friends to help him to write the application for judicial review. After his release from prison, he was transferred to the detention centre of the Immigration Department, where he asked and got help for getting the Leave Application done. He was uneducated and could not speak or write in English.

12.  At the oral hearing before this court on 21 May 2026, the applicant first explained the delay by saying that he did not receive the Board’s Decision until after he was arrested on 4 November 2025 and while he was in prison. The applicant then clarified that he was arrested on 4 November 2024 and received the Board’s Decision in March 2025 while he was serving sentence in Pik Uk prison. However, nobody helped him when he was in prison.

13.  Although the explanations given by the applicant in the document annexed to his Form 86 and at the oral hearing could be plausible, a delay of more than 5 months is significant. 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, and the Leave Application can be dismissed for being made out of time alone.

14.  Nevertheless, this court will still discuss the merits of the Leave Application below.

The applicant’s case

15.  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.

16.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by a moneylender named Nguyen Uyentrang, as the applicant could not repay the loan obtained from the moneylender.

Oral hearing

17.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 21 May 2026.

18.  When this court asked the applicant for the grounds of his intended judicial review, the applicant replied that he wanted to have the judicial review because he owed a debt in Vietnam. When this court reminded him that he had stated the grounds in a document with the title “Grounds on which Relief is Sought” annexed to his supporting affirmation, the applicant confirmed that he would rely on the grounds stated therein, which were told by him to his friend and his friend recorded them in writing for him. However, when asked whether he could elaborate on any of the grounds stated there, he said that he had nothing to add.

Grounds for judicial review

19.  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).

20.  The applicant did not advance any ground in his Form 86, but he confirmed at the oral hearing before this court that he relied on the grounds stated in the said document with the title “Grounds on which Relief is Sought”.

21.  However, those grounds were all very general and 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.

22.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing.

Discussion

23.  First of all, the applicant’s problem arising from his unpaid debt had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

24.  As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is Sought” are very general. In the said document, there are a total of 14 paragraphs listed after the applicant’s explanation for the delay in the filing of the Leave Application.

25.  First of all, some of the grounds listed in the said document were directed at the Director. However, the Director’s Decision was superseded by the Board’s Decision and 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.

26.  Paragraphs 4 and 6 in the said document were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can simply be ignored.

27.  The applicant only stated that he was the aggrieved party in paragraph 1 and mentioned that the Director’s Decision and the Board’s Decision contained all the details of his claim in paragraph 9. In paragraph 14, the applicant only asked that his appeal be remitted back to the Board for reconsideration by another adjudicator. Thus, these 3 paragraphs are not grounds for judicial review at all.

28.  In the circumstances, only paragraphs 2, 2(A), 3, 5, 7, 8, and 10 to 13 of the said document are relevant to the Leave Application.

29.  In paragraph 2, 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.

30.  He asserted in paragraph 2(A) that the Board had not given him a fair amount of time in months to establish his claim, when he was still serving his sentence and his mind was not clear at the time of the screening interview and the Board’s hearing. However, this court notes that the applicant arrived in Hong Kong on 3 January 2024. The Director’s Decision was made on 4 November 2024 while the Board’s hearing was held on 24 January 2025. This reflected that the Board heard the applicant’s case more than one year after he arrived in Hong Kong, when he allegedly wanted to seek non-refoulement protection.

31.  In other words, the applicant had more than one full year after his arrival in Hong Kong to gather whatever evidence he needed to establish his claim before the Board. It is not right to suggest that the Director or the Board would need to wait for the applicant to finish serving his sentence, which apparently was due to his convicted crime, to start to assess his claim and to allow him more time after he was released from prison.

32.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 3 either.

33.  In any event, the Board did assess the applicant’s risk of right to life. However, the Board found no evidence to substantiate that the applicant would face a real risk of being arbitrarily deprived of his life upon refoulement to Vietnam.

34.  In paragraph 5, 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. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

35.  In paragraph 7 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response when he was not in a proper state of mind as he was going through the hard time in serving the sentence. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

36.  In paragraph 8, 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.

37.  In paragraph 10, the applicant asserted that there was procedural impropriety in making insufficient inquiry, but he failed to specify which aspects of his claim had the Board failed to make sufficient inquiry.

38.  The applicant challenged in paragraph 11 that there was irrationality in that the Board had failed to consider a consistent system of human rights violation. However, it was never the applicant’s claims that there existed a consistent system of human rights violation in Vietnam. His only basis of claim was in relation to an outstanding loan which he could not repay and had nothing to do with a consistent system of violation of human rights whatsoever.

39.  The applicant’s complaint in paragraph 12 that the Board failed to call for psychological and psychiatric reports and evaluations cannot help him either. It is not a must for the Board to call for such reports when it was not raised by the applicant at the appeal stage and the Board did not find it necessary to do so in its assessment of the applicant’s appeal/petition.

40.  Finally, the applicant’s assertion in paragraph 13 that there was no reasonable basis for the Board in rejecting the credibility of his claim was completely unfounded. The Board had given full and detailed reasoning in rejecting his claim in the Board’s Decision. Despite its finding that the applicant’s claim was completely rejected as incredible, the Board even went on to assess the applicant’s claim as if his claim were accepted. Nevertheless, the Board still found that the applicant failed to substantiate a case for non-refoulement protection.

41.  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”.

42.  Thus, none of the matters that were contained in the document with the title “Grounds on which Relief is Sought” 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 were simply unfounded.

43.  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).

44.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

45.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 24 January 2025. The applicant was present and was thus given the chance to present his case to the Board in person.

46.  As can be seen from paragraphs 36 to 41 of the Board’s Decision, the Board found multiple significant inconsistencies and implausibilities in the applicant’s claim. In view of its findings, the Board refused to accept the applicant’s evidence in its entirety.

47.  As aforesaid, the Board found that even if the applicant’s claim were accepted, the applicant still could not establish a real risk of harm which would entitle him to non-refoulement protection.

48.  The Board found that the applicant’s dispute with the moneylender was only a personal financial dispute which did not involve any state actors. His fear of the moneylender was not for any Convention reasons. Even on the applicant’s evidence, the applicant had stayed in Ho Chi Minh City for 6 months and subsequently in Kam Duong for another 9 months without being found by the moneylender. The applicant admitted to the Board that he had no evidence to show that the moneylender’s influence was not localised, or that the moneylender had the power to locate him anywhere in Vietnam. Moreover, the applicant admitted that his sister lived in his home after he fled the country, and was not scared or harmed by the creditor. The Board found that this indicated the threat from the moneylender was not as imminent as the applicant claimed.

49.  Moreover, the Board found from reliable, fully-referenced COI that despite shortcomings, the Vietnamese government had taken practical steps to handle corruption in the country and to crack down illegal loan shark activities. The applicant’s assertion that the Vietnamese government would not protect him was rejected by the Board.

50.  Thus, the Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

51.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

52.  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.

53.  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

54.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused, and the Leave Application is dismissed for being made out of time and also for lack of merits.

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