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HCAL 2556/2025
[2026] HKCFI 1300
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2556 OF 2025
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BETWEEN
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Mai Van Luan |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 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 18 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 14 October 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/HCAL002556_2025_files/the_Board's_Decision.pdf
2. The Board decided that the applicant failed to demonstrate any real risk 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 25 July 2025, which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.
Amendments
3. The applicant named the Board / Non-refoulement Claims Petition Office and the Director as both the putative respondents and the putative interested parties 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 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”.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Vietnam, he would be killed by his creditor due to his inability to repay a loan of 1 billion Vietnamese Dong.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 5 February 2026.
10. The applicant attached a document to his supporting affirmation dated 6 November 2025 with the title “Grounds on which Relief is Sought”. When this court asked the applicant to elaborate on the grounds stated therein, he merely reiterated the background facts of his case concerning his debt problem in Vietnam and why he came to Hong Kong.
Grounds for judicial review
11. 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).
12. The contents of the said document with the title “Grounds on which Relief is Sought” were in fact a combination of the grounds commonly used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations.
13. There are 19 paragraphs under the heading “Grounds on which Relief is Sought”. The first 18 paragraphs contained only general allegations without any regard to his own situation. They included allegations that the decisions of both the Director and the adjudicator of the Board were wrong, unfair, unreasonable and irrational as required by the Wednesbury test; that the Director and the Board had placed too much reliance on country of origin information (“COI”) and disregarded his personal background and experience; that the adjudicator was procedurally improper and unfair; that the adjudicator failed to consider state acquiescence and a consistent system of human rights violation; that the adjudicator failed to make sufficient inquiry on COI and to provide adequate reasons in his decision; and that the Director or the Board failed to call for psychological/ psychiatric reports; etc.
14. The remaining paragraph, ie paragraph 19, only requested a hearing of the Leave Application. As mentioned, a hearing had been conducted on 5 February 2026.
15. In the second part of the same document under the heading “Reason of Late Filling [sic]”, the applicant explained his lateness for 3 and a half months. This part of the document was clearly copied from elsewhere, as the Leave Application was in fact filed within time and no extension of time for making the Leave Application was required.
16. At the end of the said document, the applicant stated he had some supporting documents to submit as he did not have the opportunity to collect evidence for his screening interview and the hearing before the Board due to his detention. He asked this court to give him reasonable time to collect evidence from Vietnamese Authorities.
17. Although the first 18 paragraphs/grounds (collectively “the grounds”) that were asserted in the applicant’s said document were general accusations without specificity, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
18. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He only reiterated the backgrounds facts of his case, which could not be a ground for judicial review.
Discussion
19. First of all, the applicant alleged at the end of the document with the title “Grounds on which Relief is Sought” that he had more evidence to submit. However, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
20. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
21. Moreover, this court notes from paragraph 5.2 of the Board’s Decision that the applicant had confirmed to the Board that he did not have further evidence to submit.
22. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.
23. As mentioned, the applicant did not elaborate on any of the grounds put forward in the said document with the title “Grounds on which Relief is Sought”.
24. Some of the grounds were directed at the Director. As 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), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
25. The applicant complained that the Board’s Decision was wrong, unfair, unreasonable and irrational as required by the Wednesbury test. However, he failed to state how or why it was so.
26. The applicant also complained 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.
27. 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.
28. His accusation that the Board had placed too much reliance on COI and disregarded his personal background also lacks specificity. The applicant failed to indicate what personal background and experience of his had been disregarded. Contrary to the applicant’s assertion, this court finds that the Board had considered his personal background and experience very extensively, especially in relation to his past business and work experience in assessing the credibility of his claim.
29. Similarly, his accusations that the adjudicator was procedurally improper and unfair; that the adjudicator failed to consider state acquiescence and a consistent system of human rights violation; that the adjudicator failed to make sufficient inquiry on COI and to provide adequate reasons in his decision, etc, were advanced without any particulars.
30. Contrary to the applicant’s assertion that the Board did not make sufficient inquiry on COI and failed to consider consistent system of human rights violation, etc, this court notes that the Board had discussed the general situation in Vietnam, and had gone through extensive, fully-referenced COI when assessing the availability of state protection and the viability of internal relocation for the applicant. The applicant’s accusations in this regard are simply unfounded. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
31. The last general accusation that the Board failed to call for psychological/psychiatric reports 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.
32. 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”.
33. Thus, none of the accusations in the grounds 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.
34. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
35. 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, supra).
36. 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.
37. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 September 2025 and the applicant was present (through video link). Thus, the applicant was given the opportunity to present his case to the Board in person.
38. As laid out in paragraphs 76 to 86 of the Board’s Decision, the Board found multiple and significant implausibilities and inconsistencies in the applicant’s story. The Board did not accept the applicant’s evidence regarding his reason for obtaining such a huge loan, how the loan agreement was reached, and that the creditor had chased him for repayment as he described. The Board in fact found that the applicant was exaggerating or inventing evidence when questioned by the Board. The applicant’s evidence and claims were rejected in their entirety.
39. Despite the finding of the applicant’s credibility as summarised above, the Board did go on to assess the applicant’s case as if his allegations were accepted, but the Board found that the applicant still could not succeed in his claim for non-refoulement protection.
40. The Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. Even on the applicant’s own evidence, he and his family members were not harmed at all in the dispute with his creditor. The moneylender, whom the applicant alleged to be a triad member, could have seriously harmed or killed him if the creditor had a real intention to do so. The moneylender did not harm his family when he or his men came to ask for the applicant’s whereabouts. The alleged ill-treatment inflicted by the moneylender did not reach a minimum level of 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.
41. 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 applicant’s assertion that the state would not protect him was his own speculation. The Board found that there was sufficient state protection in Vietnam.
42. The Board also found that there was internal relocation alternative for the applicant. The applicant’s assertion that the moneylender was powerful and could locate him anywhere was again, just his own speculation. After taking into account of all the relevant matters, the Board found that it would not be unreasonable or unduly harsh for the applicant, being an adult male with 11 years of formal education and 14 years of work experience including managing his own business, to live elsewhere in Vietnam other than his home area to reduce or even negate any risk of harm.
43. 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.
44. 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.
45. 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.
46. 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
47. For reasons aforesaid, the Leave Application is dismissed.
Dated the 3rd day of March 2026
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors on:
3 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 3 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26883
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1189/25
(Formerly RBCZ 5001097/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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