NGUYEN VAN GAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2526/2025

[2026] HKCFI 3452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2526 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 14 November 2025, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 13 November 2025 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 12 March 2025 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002526_2025_files/the_Board's_Decision.pdf

2.  Notwithstanding that the Director’s Decision and the Board’s Decision are in Chinese, this court believes that it is more convenient to render this decision in the English language as the applicant’s Form 86 and the supporting affirmation were both prepared in English.

3.  In the Form 86, the applicant named the Board as well as the Director as the proposed respondents and did not name any interested party.  As the Board should have been the proper putative respondent and the Director the putative interested party, the Form 86 shall be amended on the court’s own motion.

4.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by a loan shark with triad background for an unpaid loan.  The 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.

5.  The applicant has requested for an oral hearing.  On 27 March 2026, the applicant filed an affirmation together with a letter to apply for the withdrawal of the Leave Application.  In both documents, the applicant confirmed that it was safe for him to go home, that he made the withdrawal application in his own free will and that he understood the consequences of the withdrawal.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

6.  The leave application operates as a “filtering” process. Hence there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the applicant’s Form 86, the applicant averred that the Board was unreasonable and procedurally unfair. The supporting affirmation provided no such grounds.

8.  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.[4] In the present case, the Board found that the applicant’s claims concerning the loan and the threats by the creditor credible.  However, the Board found that the creditor had no serious intent to harm the applicant, and that the past ill-treatment failed to meet the requisite level of severity.  The Board concluded that he would not be subjected to risks of harm.  The Board also found that state protection and internal relocation would be reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The allegations the applicant made in his Form 86 were vague and general, and lacked particulars.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant advanced no grounds in support of the Leave Application. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

10.  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

11.  The Form 86 be amended on the court’s own motion.

12.  The applicant’s application for leave to apply for judicial review be dismissed.

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