NGUYEN LE HOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2040/2025

[2025] HKCFI 6299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2040 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  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 10 September 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 30 March 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 30 August 2021 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002040_2025_files/the_Board's_Decision.pdf

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

3.  In the Form 86, the applicant named the Board and the Director as the proposed respondents as well as the interested parties. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly 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 his creditor and the henchmen. 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.

5.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 4 December 2025. The applicant was brought to court by a body order as he was detained in Tai Tam Gap Correctional Institution after having served a 18 months’ imprisonment for the offence of using a forged identity card.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is 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[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 contained no grounds and the assertions in the applicant’s supporting affirmation were confusing. Briefly stated, the applicant averred that the Board’s Decision was unfair and unreasonable in relation to the matters on COI, the availability of state protection and internal relocation.

8.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said that he would rely on the 4-page written submission he submitted at the hearing. The applicant further stated that he had a 3 and 1/2 year old son born in Hong Kong. The mother of the son was another non-refoulement claimant. He needed to stay in Hong Kong to take care of his son.

9.  In the written submission, the applicant submitted that the Board had failed to properly investigate the past ill-treatment. He referred to a knife stab injury caused by the creditor and his henchmen that required stiches and medical care. He stated that the scar was still visible and was prepared to undergo medical examination. The applicant stated that the Board had failed to take this particular serious injury into account when assessing the level of the severity and the relevant risk of harm. The applicant therefore submitted that the Board had failed to apply a high standard of fairness by properly investigating his scar.

10.  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.[3] In the present case, the Board found that the applicant’s evidence concerning the debt and the alleged assaults and attacks by the creditor and his men was vague and unsupported by any evidence. In rejecting the credibility of the applicant’s claims, the Board found that the applicant’s evidence was inconsistent and illogical. The Board at [21] of the Board’s Decision had referred to the stab injury that the applicant mentioned. However, the applicant told the Board that he had completely recovered from the injury and that he would not provide any medical report. He also did not want any medical examination. The Board found that the applicant gave different versions of evidence at different stages. The applicant was unable to provide any reasonable explanation for the discrepancies. The Board also found that the applicant did not mention his most serious stab injury in his written statement (Board’s Decision [26]). The Board went on to consider that even if the Board were to accept the applicant’s claim regarding the attacks, the Board found that the injuries were not serious. The Board referred to the incident in 2020 when the creditor brought more than 10 people to demand for repayment, the applicant was not attacked but was only given a verbal warning. The Board believed that this showed that the creditor had no intention to harm or kill the applicant. The Board further found that both state protection and internal relocation were 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.

11.  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 submission regarding the Board’s alleged failure to properly consider the past ill-treatment and the stab wound had no merits. As discussed in the preceding paragraph, the Board had given detailed discussion of the applicant’s evidence regarding the attacks as well as the stab injury. The Board however concluded that the applicant’s evidence was not credible. The applicant had specifically told the Board that he would not provide any medical report or under go any medical examination. In the circumstances, I am satisfied that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. 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[4].

Whether to extend time for the late application

12.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. The applicant was late for about 2 years and 3 months. It is a substantial delay.

13.  In his explanation for the delay, the applicant stated that the delay was caused by his imprisonment and that he did not receive any information either from the Immigration Department or from the court as to how he could make an application. It was only after he finished serving his prison sentence and was transferred to Tai Tam where he was currently detained, he was allowed to make phone calls. He said he found someone who helped him check the progress of the case and file the Leave Application.

14.  I do not accept that the applicant would have no information about the Board’s Decision or no access to resources to enable him file an application. I therefore do not find the explanation for the delay satisfactory. Further, given the lengthy delay and the lack of good prospect of success in his intended challenge, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

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

16.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

17.  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