TRAN TRUNG HIEU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1489/2025

[2026] HKCFI 2722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1489 of 2025

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed. 

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 May 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 August 2023. His application was filed on 27 June 2025, which is late for more than 1 year and 10 months. This issue will be dealt with below.

2.  The applicant did not ask for a hearing.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

4.  The Board’s Decision is in Chinese. This Form CALL-1 is in English because the applicant submitted his affirmation and grounds in support of his application in English.

The applicant

5.  The applicant is a national of Vietnam. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay his debt.

6.  Details of the applicant’s story can be found in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001489_2025_files/the_Board's_Decision.pdf

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By Notice of Decision dated 27 January 2022 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 26 January 2023, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

10.  Having considered the evidence, the Board made the findings below.

(1)  There was no evidence in support of the loan. [21] & [22]

(2)  Even if his evidence were accepted, he is still not eligible for non-refoulement protection [25] because state protection is available and internal relocation is viable if he returns to Vietnam. [27] & [46]

11.  For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 27 June 2025 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has raised the grounds below to challenge the Board’s Decision.

(1)  The adjudicator was wrong because she had not considered his right to life.

(2)  The adjudicator was unfair because she had relied too much on the country of origin information without considering his personal background and experience; and she had required him to answer questions that he was not in a position to offer any response.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  The applicant had given no explanation for his serious delay.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  The applicant’s reasons under paragraph 13 are bare assertions without any evidence in support. They are invalid to challenge the Board’s Decision[2].

19.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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