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HCAL 415/2024
[2026] HKCFI 4204
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 415 of 2024
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BETWEEN
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Dinh Duc Cuong |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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 (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Andrew Li:
1. The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration as the putative interested party; and
2. Leave to apply for judicial review be dismissed.
Observations for the Applicant:
INTRODUCTION
1. By a Form 86 filed on 5 March 2024 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 17 January 2024 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 16 October 2023 in refusing the applicant’s non-refoulement protection claim. He named both the Board and the Director as the proposed respondent and the Board as the interested party in this case.
2. I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.
3. The applicant did not request for a hearing and this application is to be dealt with on paper.
BACKGROUND
4. The applicant is a national of Vietnam. He seeks non-refoulement protection on the basis that if he is refouled, he would be hurt by a loan shark from whom he had borrowed money to fund his shrimp farming business. His personal background, the relevant facts and relevant procedural history have been set out in the Board’s Decision, which can be assessed through a hyperlink[1]. I shall not repeat the same here.
DISCUSSION
5. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).
6. In the Form 86 and his affirmation filed in support of this application, the applicant has not specified any grounds on which the review was based on.
7. Having carefully studied the Board’s Decision, I find the Board has taken into consideration of the applicant’s case and evidence [3-18], including the applicant’s testimony at the hearing before it [26-29].
8. The Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [79, 84, 91-92, 99-101], thoroughly analysed each, including the applicant’s credibility [37], before coming to the findings and conclusions that the applicant fails to substantiate his claims under each of the applicable grounds [102-106].
9. The Board further concluded that, internal relocation would also have been available to the applicant [73-78].
10. Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.
CONCLUSION
11. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 4th day of August 2026
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(Cheung Ho Yat, Annson)
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 to the Applicant on 4/8/2026
Dinh Duc Cuong
Applicant’s ref. no.:
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Sent 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 4/8/2026
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22381
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 928/23 (formerly RBCZ 5000896/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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