NGUYEN ANH SANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2581/2024

[2026] HKCFI 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2581 OF 2024

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 “Director of Immigration” be added as the putative interested party.

2.  The applicant’s applications to withdraw the Leave Application, to re-open the Leave Application and for an extension of time to file an appeal with the Court of Appeal 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 on 23 December 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 16 August 2024 (“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/HCAL002581_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 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 22 March 2024 and confirmed the same.

Amendments

3.  The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86.

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.  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 putative respondent 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 to add “Director of Immigration” as the putative interested party.

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 23 December 2024, which was more than 4 months after the Board’s Decision (made on 16 August 2024). The applicant was hence late for more than 1 month 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.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 8 January 2026, the applicant first said that he was not aware of the court’s procedures. He then said the Board’s Decision was posted to a wrong address. When this court asked the applicant to confirm his address, he said that someone helped him to write the address to the Immigration Department, but that person gave a wrong address. He failed to recall when he in fact received the Board’s Decision, but he was asked by the Immigration Department to make the Leave Application.

11.  The delay of more than 1 month is not insignificant, and the explanation given by the applicant is not satisfactory. There was simply no excuse for providing a wrong address to the Immigration Department, and the applicant simply failed to explain when he received the Board’s Decision. Ignorance of the court’s procedures is also not an excuse. More importantly, there is no merits in the intended judicial review at all as discussed below.

12.  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.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Vietnam, he would be harmed or killed by his creditor due to his inability to repay a loan of 700 million Vietnamese Dong (“VND”).

Withdrawal and re-opening of the Leave Application

16.  On 26 June 2025, the applicant wrote a letter to the Registrar of the High Court and filed an ex parte application by way of his affirmation dated 26 June 2025 to withdraw the Leave Application on the ground that it was safe for him to return to his country.

17.  However, by another affirmation dated 10 November 2025, the applicant applied to re-open his case and for an extended time to file an appeal with the Court of Appeal, as he was still in danger if repatriated.

18.  Since this court had not dealt with the applicant’s withdrawal application, it was not necessary for the applicant to apply for re-opening of the Leave Application. There was also no need to apply for an extension of time to file an appeal to the Court of Appeal, as the Leave Application had not been dealt with.

19.  It is clear that the applicant no longer wishes to proceed with the withdrawal application and hence it should be refused.

20.  It is also clear that the applications for re-opening of the Leave Application and extension of time to appeal to the Court of Appeal were both unnecessary and should be refused as well.

21.  Thus, this court orders that the applicant’s applications to withdraw the Leave Application, to re-open the Leave Application and for an extension of time to file an appeal with the Court of Appeal be refused.

Oral hearing

22.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 January 2026.

23.  When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in a document annexed to his Form 86 with the title “Grounds on which relief is sought”, he merely repeated his allegation that his life was in danger as he could not repay his debt in full.

Grounds for judicial review

24.  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).

25.  The contents of the said document with the title “Grounds on which relief is sought” 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 above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

26.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He only mentioned that his life was in danger as he could not repay his debt in full, which was not a ground for judicial review.

Discussion

27.  As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it 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.

28.  There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application.

29.  In paragraph 1 of the grounds, 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. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.

30.  In any event, the Board did assess the applicant’s risk of right to life but concluded that the facts of his case clearly did not give rise to any risk of violation of right to life.

31.  In paragraph 3, 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.

32.  In fact, the Board did consider the applicant’s personal background and experience extensively, and concluded that among other findings, given his background, it was unlikely that he could persuade the moneylender to lend him 700 million VND.

33.  In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions. 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 unreasonably required to answer.

34.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

35.  In paragraph 6 of the grounds, 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.

36.  The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection. The Board’s rejection of his non-refoulement claim was a decision made after due consideration of the law and the evidence placed before it. The applicant failed to provide details as to how he was discriminated. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review.

37.  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”.

38.  Thus, none of the grounds that were contained in the applicant’s said document 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 are completely unfounded.

39.  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).

40.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

41.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 June 2024 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

42.  The Board found multiple and significant implausibilities and inconsistencies in the applicant’s story. In consideration of the applicant’s background, employment history, his monthly income before starting the business, the lack of the basic knowledge and details relating to the business, the Board did not accept that the applicant did run a business and could persuade the moneylender to lend him 700 million VND. The Board did not find the applicant to be a credible witness.

43.  The Board found that the applicant’s story about running of the business and borrowing of the money was fabrication, and it followed that his story of harm and ill-treatment from the moneylender was also fabrication.

44.  Despite the finding of the applicant’s credibility as summarised above, the Board did go on to assess the applicant’s case but found that even if his allegations were accepted, he still could not succeed in his claim for non-refoulement protection.

45.  The Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. The alleged oral threats by the moneylender could not attain the level of minimum severity. The moneylender was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. His fear of ill-treatment did not fall within any of the Convention categories.

46.  Moreover, the Board found from COI that although there were materials that indicated corruption and inefficiency was common in the Vietnamese police force, the Vietnamese government had undergone reforms to combat police corruption and improve their efficiency. The Board found that there was sufficient state protection in Vietnam.

47.  The Board also found that there was internal relocation alternative for the applicant. The applicant failed to discharge his onus as to why he could not relocate to other parts of Vietnam. After taking into account of all the relevant matters, the Board found that it would not be unreasonable or unduly harsh for the applicant to live in a place of his own choice in Vietnam other than his home area to avoid any risk of harm.

48.  Thus, the Board concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

49.  The finding of facts, including 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.

50.  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.

51.  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

52.  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

Form CALL-1