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BETWEEN
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Nguyen Tran Phuc |
Applicant |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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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 (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended on the court’s own motion.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 December 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 December 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 30 August 2023 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002318_2023_files/the_Board's_Decision.pdf
2. In his Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly.
3. The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor and his henchmen for an outstanding loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
4. Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 March 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 6 March 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court.
5. Before the scheduled hearing, the applicant had in fact filed an affirmation as well as a letter on 4 September 2025 applying for the withdrawal of the Leave Application. In both the affirmation and the letter, the applicant stated it was safe for him to return home, and that he made the application to withdraw voluntarily and that he understood the consequences of the withdrawal.
6. Before any order on this withdrawal application was made, the applicant filed another affirmation on 24 October 2025, requesting to have his case re-opened and for an extension of time to file an appeal. He stated that before he made the application to withdraw, he thought it was safe for him to return. However, he realized that he would still face the risk of harm from his creditor.
Discussion
7. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[3] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
8. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the grounds set out in the applicant’s Form 86, only some parts of them related to the Board’s Decision. Concerning the Board’s Decision, the applicant made broad statements, alleging procedural unfairness and unreasonableness. The supporting affirmation did not provide any grounds.
9. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5] In the present case, the Board found that the applicant’s creditor has no intention of harm or kill the applicant. The Board concluded that the applicant would not face any real risk of harm if refouled. The Board also found that state protection and internal relocation were reasonably available.
10. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds set out in the Form 86 were vague and general, and did not condescend to particulars. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].
The applicant’s affirmation to withdraw and the affirmation to retract the withdrawal
11. I will firstly deal with the applicant’s application by affirmation dated 24 October 2025 to request to re-open his case, and to extend time to appeal. At that time, the court had not made any order either on the Leave Application or on his request for the withdrawal. Hence, this application was pre-maturely made. I therefore make no order on this application.
12. In the circumstances, the applicant’s application to withdraw the Leave Application is still extant and valid. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
13. The Form 86 be amended on the court’s own motion.
14. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 10th day of April 2026
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(Alfred Chan)
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 the Applicant’s 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 to the Applicant
on 10/4/2026
Nguyen Tran Phuc
Applicant’s ref. no:
Nil. |
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Sent 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 10/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22131
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 669/23 (formerly RBCZ 5000621/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
[2] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”.
[3] Re Zunartyah [2018] HKCA 14 at [23].
[4] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[5] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[6] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676