NGUYEN VAN VAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1841/2020

[2026] HKCFI 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1841 OF 2020

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;

1.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 19 March 2020”.

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 19 June 2020 and filed on 15 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 19 June 2020.

2.  The Torture Claims Appeal Board (“the Board”) only made one decision dated 19 March 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 May 2018 (“the Director’s Decision”). No decision by either the Director or the Board was made in respect of the applicant’s non-refoulement claim or its related appeal/petition on the date of decision specified in Form 86 (ie 19 June 2020, which was in fact put down as the date of his Form 86 as well).

3.  It is clear that the subject matter of the Leave Application should be 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/2020/HCAL001841_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant did not face any real risk on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) if refouled. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

5.  The applicant did not name any putative respondent and named “IMMIGRATION OF HK SAR” as the putative interested party in Form 86.

6.  In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party.

7.  As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

8.  Thus, this court makes an order on its own motion to add “Torture Claims Appeal Board” as the putative respondent, to amend the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 19 March 2020.

Late application

9.  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.

10.  However, the applicant filed his Form 86 on 15 September 2020, which was more than 5 months after the Board’s Decision (made on 19 March 2020). The applicant was hence late for more than 2 months in making the Leave Application.

11.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

12.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

13.  A delay of more than 2 months is substantial. More importantly, there is no merits in the Leave Application as discussed below.

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

15.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

16.  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.

17.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor named Quyen due to his inability to repay a loan of 400 million Vietnamese Dong borrowed from Quyen in 2010.

Disposal on paper

18.  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.

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 for his intended judicial review in Form 86. He merely repeated his danger from his creditor in his supporting affidavit/affirmation dated 23 June 2020.

Discussion

21.  First of all, the applicant’s alleged danger from his creditor had already been assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

22.  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).

23.  Thus, despite the fact that the applicant did not 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.

24.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 May 2019. The applicant was thus given the chance to present his case to the Board in person.

25.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. After listening to all the applicant’s evidence, the Board had no doubt that the applicant’s story was invented or at least exaggerated.

26.  The Board further found that even if its finding on the credibility of the applicant was wrong, the applicant still could not substantiate his claim for non-refoulement on any of the applicable grounds under the USM.

27.  The applicant’s alleged fear arose only from his inability to repay a loan, which was a private matter. There was no element of state acquiescence. The injuries that he claimed to have sustained from the only attack was not serious. Any ill-treatment inflicted upon him was not for a Convention reason. The Board concluded that the applicant had failed to establish that he would face any real risk of torture, deprivation of life, CIDTP[1] or persecution if refouled.

28.  Further, the applicant’s evidence was that the police did record his reports but the applicant did not follow up with the police because he needed to work. The Board found no evidence to show that the police in Vietnam would not be able or was unwilling to discharge their duties. Hence, the Board found no personal risk to the applicant that he would be unable to access state protection.

29.  Aa to the viability of internal relocation, the Board found no evidence that the creditor had the kind of influence to locate him countrywide. The Board found that it would not be unreasonable or too harsh for the applicant, being a mature adult with over 30 years of work experience, to relocate to other areas in Vietnam to avoid any risks from his creditor.

30.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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.

31.  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.

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.

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

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