NGUYEN VAN CHINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 975/2021

[2026] HKCFI 3042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 975 OF 2021

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 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 12 July 2021, 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 23 March 2021 (“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/2021/HCAL000975_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not established his non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Moreover, the applicant could have accessed and was able to access reasonable state protection. In any event, internal relocation was a reasonable and practicable option for the applicant. Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 December 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

4.  In fact, the Board should only be named as the putative respondent and the Director should be named as the putative interested party.

5.  This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

Late application

6.  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.

7.  However, the applicant filed Form 86 on 12 July 2021, which was 3 months and 19 days after the Board’s Decision (made on 23 March 2021). The applicant was hence late for 19 days 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.

8.  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.

9.  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, the applicant said that he forgot when he received the Board’s letter containing the Board’s Decision, and he could not offer any explanation for the delay.

10.  Although a delay of 19 days is not substantial, the explanation given by the applicant is clearly not satisfactory. More importantly, there is no merits of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

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

The applicant’s case

12.  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 hyperlinks above.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor Ding Van Hoai (“Hoai”) and Hoai’s underlings as he could not repay a large sum of money borrowed from Hoai.

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 21 May 2026.

15.  When this court asked the applicant for the grounds of his intended judicial review, the applicant admitted that there was nothing wrong with the Board’s Decision, but he could not return to Vietnam as his loan problem still existed.

Grounds for judicial review

16.  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).

17.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 12 July 2021, the applicant merely reiterated the basis of his claim that his creditor had vandalized his home and threatened to kill him due to his inability to repay his loan.

18.  What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either, as he only reiterated the basis of his non-refoulement claim. As aforesaid, the applicant actually confirmed that there was nothing wrong with the Board’s Decision.

Discussion

19.  First of all, the applicant’s danger from his creditor upon refoulement had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

20.  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).

21.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 18 March 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

23.  As can be seen from the Board’s Decision, the Board found that the applicant had only made bald assertions which did not carry with them a ring of truth. The applicant’s evidence was suggestive of a script provided for him by others.

24.  The Board had laid out in paragraphs 74 to 90 of the Board’s Decision its findings on the credibility of the applicant and his case, and it is not necessary for this court to repeat the same here.

25.  In gist, the Board did not find the applicant to be a credible witness. The core parts of his evidence were sketchy, minimalistic and implausible. There were also material inconsistencies in his evidence. The Board thus found that (1) the applicant had never borrowed a loan from Hoai, and Hoai was a fictitious character of the applicant’s inventions; (2) the applicant had never run a fish and shrimp farming business in Vietnam; (3) the applicant had never paid any interest to Hoai and he had never defaulted in payment of interest due payable to Hoai; (4) Hoai and/or his triad underlings had never assaulted and threatened the applicant; (5) the applicant had never sustained any injuries; and (6) the applicant had never approached the Public Security Bureau of Vietnam.

26.  The Board’s assessment of the applicant’s claim on all the applicable grounds were laid out in details in paragraphs 118 to 140 of the Board’s Decision. In gist, the Board found the core elements of the applicant’s evidence were not credible. In any event, the applicant had not established state complicity. His alleged dispute with the creditor only arose from his inability to repay a loan, which was a private matter. Thus, his fear of mistreatment was not for a Convention reason.

27.  The Board also found from country of origin information (“COI”) that despite there was corruption in the police and government authorities, steps were being taken by the Vietnamese government to improve the situation and to crack down illegal loan shark activities. The Board found that reasonable state protection would be available to the applicant.

28.  Moreover, the Board had given full reasons in paragraphs 102 to 117 of the Board’s Decision for its finding that internal relocation was a reasonable and practicable option for the applicant. This court finds no flaw in such a finding.

29.  In view of its findings, the Board considered that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.

30.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decisions. The applicant’s alleged risks from his creditor had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decisions.

31.  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.

32.  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

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid 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