KHUC NGOC HIEP v. TORTURE CLAIMS APPEAL BOARD

HCAL 2059/2025

[2025] HKCFI 5378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2059 OF 2025

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 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 extension of time to file the Leave Application be refused.

3.  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 September 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 1 June 2023 (“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/HCAL002059_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to substantiate his non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 October 2022 (“the Director’s Decision”) and confirmed the same.

Amendments

3.  In Form 86, the applicant named both “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and the Director as both the putative respondents and the putative interested parties.

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

5.  The Non-refoulement Claims Petition Office is just an office which provides 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 to amend 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 if refouled to Vietnam, he feared being harmed or killed by the family of the victim whom he killed in 2008. He was convicted of murder and was sentenced to 18 years’ imprisonment. He was released in 2020 after 12 years’ imprisonment. A few days after his release, he received a call from an unknown man threatening that he would be killed for the crime he committed. As he continued to receive such calls for consecutive days, he changed his phone number. He suspected that the threats were from the victim’s family with a view for retaliation. He was attacked a few days later by 10 unknown men with weapons and beer bottles and suffered injuries as a result. In fear of being further harmed, he left his hometown for Ho Chi Minh City. After staying there for a year or so, he heard that many people were still trying to locate him, and hence he left Vietnam in August 2021.

Late application

9.  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.

10.  However, the applicant filed Form 86 on 12 September 2025, which was more than 2 years and 3 months after the Board’s Decision (made on 1 June 2023). The applicant was hence late for more than 2 years 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.

11.  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.

12.  As the applicant was asking this court to give him an opportunity to make his late application, this court will treat that the applicant is making such an application for extension of time to file the Leave Application. The applicant gave the reason for his delay in the 7-page handwritten document annexed to his supporting affirmation dated 27 August 2025 with the title “Grounds For AppLicaTion oF Judicial Review in The Hong Kong Court Court oF First instance oF HongKong SAR”.

13.  In the said document, the applicant stated that the Immigration Department never informed him that his appeal/petition was determined. The notice of decision was never sent to him. The Immigration Department could not say that the decision was sent to him or that they could not contact him as he never changed his address. He also reported to the Immigration every two weeks for recognizance. He was detained at the CIC[1] since 29 May 2025. He only came to know that his appeal/petition had been determined when he wrote to the Board on 8 July 2025 and received their reply on 14 July 2025.

14.  At the oral hearing before this court on 4 November 2025, when this court asked the applicant for the reason for the delay, he gave the same reason that he did not receive the Board’s Decision. However, he confirmed that he was living at the address as reported, ie his address at Canton Road, in June 2023. This was the same address used by the Board to send the Board’s Decision to him on 1 June 2023. The applicant could not offer any explanation as to why he did not receive the Board’s Decision when the address was correct. He further explained that he could not read Chinese, but this would not be relevant as his case is that he did not receive the Board’s Decision at all.

15.  The delay of two years is very substantial and the explanation given by the applicant is not satisfactory. The reason why he did not receive the Board’s Decision when the address was correct remained unexplained.

16.  More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The Leave Application can be dismissed on the ground of being made out of time alone.

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

Oral hearing

18.  Although the applicant did not make an express request for an oral hearing of the Leave Application, his case was heard on 4 November 2025.

19.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in his 7-page document annexed to his supporting affirmation. He admitted that his friend helped him to prepare the grounds and he just copied the grounds from what his friend had written in English.

20.  When this court asked the applicant to elaborate on the grounds, he only said that he had killed someone in Vietnam and when he was released from prison, the friends of the person he killed came to find him. He added that his parents were separated and his mother is in Hong Kong to avoid debt. His mother sold all the properties to come here. He now has a 15 months old daughter born in Hong Kong.

Grounds for judicial review

21.  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).

22.  The grounds that were asserted in the document annexed to his supporting affirmation with the title “Grounds For AppLicaTion oF Judicial Review in The Hong Kong Court Court oF First instance oF HongKong SAR” are summarised as follows:-

1.  He does not read Chinese and it was unfair for the Board to give its decision in a language which he cannot understand.

2.  It was unfair for the Director and the Board to refuse his non-refoulement claims without exploring the reality or the substance of his claim. It is wrong in law to make decisions disregarding the risks that he would face upon return to his country.

3.  The Board determined his claim without calling him for an oral submission or a hearing.

4.  He was denied of the high standards of fairness required in the assessment of non-refoulement claims.

5.  The adjudicator acted in a procedurally unfair manner in that she did not properly assess the credibility of the applicant. The Board mentioned in all their decisions that the applicants did not have credibility.

6.  The Board’s Decision was unreasonable.

7.  The Immigration just focused on the viability of internal relocation and refused all non-refoulement claims the same way.

8.  All his family, including his mother, his wife and his little daughter are in Hong Kong.

9.  He has not committed any serious crimes in Hong Kong and has no connection with group gangsters or drugs. Even though he has committed crime twice and was sentenced to short durations in Hong Kong, he promised that he would not commit the same mistakes again.

23.  As aforesaid, the applicant failed to elaborate on the above grounds at the oral hearing before this court. The matters that he told this court at the oral hearing could not amount to any valid grounds for the intended judicial review. Nevertheless, as the applicant is relying on the grounds in the said document as summarized above, this court will still deal with the grounds as discussed below.

Discussion

24.  First of all, grounds 8 and 9 as outlined above are irrelevant. The fact that the applicant’s family members are all in Hong Kong is not a ground for non-refoulement. His promise of not committing further crimes in Hong Kong cannot be considered as a ground to challenge the Board’s Decision at all.

25.  The applicant accused the Board in ground 3 that the Board determined his claim without calling him for an oral submission or a hearing. This accusation is totally unfounded. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 April 2023. The applicant was present and was given the chance to present his case to the Board in person.

26.  Grounds 2, 4, 5 and 6 are all general accusations without any particulars related to the applicant’s own case.

27.  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”.

28.  Thus, none of these grounds, which merely contained “keywords” like the Board’s Decision was wrong and unreasonable, the Board denied him of high standards of fairness and was unfair, procedurally unfair, etc, 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.

29.  The applicant asserted in ground 1 that he does not read Chinese and it was unfair for the Board to give its decision in a language which he cannot understand.

30.  However, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). Hence, the applicant cannot rely on the lack of language assistance as a ground for his intended judicial review.

31.  Finally, in ground 7, the applicant accused the Immigration, which was taken to include the Board, just focused on the viability of internal relocation and refused all non-refoulement claims the same way.

32.  This court notes that the Board did not reject the applicant’s appeal/petition based on any findings on the viability of internal relocation for him. On the contrary, the Board explicitly stated in paragraphs 104 to 107 of the Board’s Decision that following the principles as held in Robinson,[2] it was not necessary to consider the viability of internal relocation for the applicant.

33.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

34.  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).

35.  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.

36.  This court notes from the Board’s Decision that the Board accepted that factual basis of the applicant’s claim, namely that he killed a person in 2008, was sentenced to 18 years’ imprisonment and was released in 2020. The Board also accepted that he received calls imposing threats on him after his release and that he was attacked by 10 unknown men on one occasion.

37.  However, the Board found from the applicant’s own evidence that he had no knowledge of the victim’s family or their background. The applicant did not know the identity of the person who called to threaten him after his release from jail. He had not received further calls after he changed his phone number. In the only attack that the applicant encountered, he did not know the identity of the attackers or who sent them. On his own evidence, the injuries he sustained were not serious. The applicant admitted at the Board’s hearing that the police did accept his report of the attack. The applicant did not know the progress of the investigation only because he did not make any further enquiries with the police after he left his hometown. The applicant confirmed with the Board that after his arrival in Hong Kong, he had not made any contact with anyone in Vietnam, he did not know anything further about the threats he received back in Vietnam, and he had not met or heard from the victim’s family.

38.  More importantly, the applicant admitted to the Board that it was only his own speculation that the person who threatened him or the attackers were the victim’s family or people sent by them. The Board considered that there was no evidence to suggest that the threats were posed on him by the victim’s family, or that the attack he encountered was in any way associated with the victim’s family.

39.  The Board also noted from the applicant’s evidence that the victim’s family had never contacted him during the years when he was serving sentence, nor had they directly contacted him at all material times and threatened or attacked him directly. During the year or so when the applicant relocated himself to Ho Chi Minh City, nothing adverse happened to him before his departure from the country.

40.  Hence, the Board did not accept that the applicant would be at risk in Vietnam due to the reasons that he claimed.

41.  Even if the applicant’s account were accepted, it was only a private dispute between the applicant and the victim’s family. There was no evidence to suggest that the acts of the victim’s family were with the consent or acquiescence of the state. The injuries that the applicant sustained as a result from the only attack did not reach a minimum level of severity. The acts imposed on the applicant were not for a reason under the definition of torture under section 37U of the Immigration Ordinance, nor for any of the Convention reasons.

42.  Moreover, the Board found from country of origin information (“COI”) that reasonable state protection was available to the applicant should he need it.

43.  As mentioned, based on its findings as summarised above, the Board did not find it necessary to make findings on the viability of internal relocation for the applicant. Nevertheless, the Board did mention in paragraph 108 of the Board’s Decision that there was no evidence to suggest that the victim’s family was associated with the triads or had any people under their command to hunt down or hurt the applicant if the applicant relocated to other cities like Hanoi or Ho Chi Minh City.

44.  Thus, the danger that the applicant allegedly would face upon his refoulement to Vietnam had been duly assessed but rejected by the Board.

45.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

46.  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.

47.  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

48.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused, and the Leave Application is dismissed for being made out of time and also for lack 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