NGUYEN TIEN TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 49/2022

[2026] HKCFI 2755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 49 of 2022

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.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 13 January 2022, 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 December 2021 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 7 July 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000049_2022_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any party as the interested party. As the Board should have been the proper putative respondent and the Director, the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by the loan shark with triad background for an outstanding debt. 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.

4.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly, and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided none at all. In the supporting affirmation, the applicant averred that the Board’s Decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.  

7.  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. In the present case, the Board found that the number and nature of inconsistencies and implausibility in the applicant’s evidence were serious and therefore had undermined his credibility, The Board assessed that the centerpiece of his story did not stand. Even if the Board were to accept his account, it found that the past ill-treatment did not meet the requisite level of severity. It found that the applicant would not be subjected to any risks of harm if refouled. It further found that internal relocation would be reasonably viable. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  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 assertions the applicant made in his supporting affirmation were general and vague, and could not constitute any valid grounds. 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.

Orders

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

10.  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