NGUYEN VAN YEN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 723/2022

[2026] HKCFI 2707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 723 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   Leave to file the Form 86 out of time be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 January 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 16 February 2021 refusing his application for non-refoulement protection.

2.  The Applicant had requested an oral hearing.  A hearing on 18 March 2026 was scheduled for him and notice of hearing was sent to him by post to his address as stated in his Form 86 and to his address as discovered from the Immigration Department on 6 February 2026.  But the Immigration Department also advised that the Applicant had absconded since 6 October 2022, ie about two months after filing the Form 86.  The Notices have not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that he had not received the notices.  A court staff attempted to contact him on his telephone number obtained from the Immigration Department on the afternoon of 17 March 2026 to remind him of the hearing.  The call was not answered.  The Applicant did not appear at the hearing.  As he had long absconded, it is highly unlikely that he will attend the hearing.  Anyway, the Court is satisfied that the notice of hearing had been validly served on him and that it had done all it could to bring the hearing to his notice.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.    

The delay in taking out the leave application

3.  The leave application was filed 6 months and 9 days after the date of the Decision sought to be reviewed.  Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made  promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The leave application was made 3 months and 9 days out of time.  The Applicant has to show very good and compelling reason for extending the time to file the leave application.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.  

5.  Despite clear warning in the Form 86 that an applicant is required to state his reason for delay, if any, the Applicant provided no explanation for the very inordinate late application.  He did not appear at the hearing and forwent his last opportunity to explain his delay.  The law requires that an application for delay shall be made in any event within three months from the date when the grounds for the application first arose decision, ie when the Decision sought to be reviewed was made unless the court considers that there is good reason for granting extension of time to apply; and there is simply none.  His application is time barred.  The very inordinate delay reflects not only a lack of will to pursue his rights, but also an underlying lack of merits in the substantive application.  Nevertheless, out of abundance of caution and for completeness the Court also consider the merits of his intended leave application.

Background                                                                      

6.  The Applicant is Vietnamese national, now aged 34.  He was injured and admitted into hospital for treatment on 14 July 2020 when he was arrested, probably in relation to some immigration offences.  He claimed to have departed Vietnam on 10 May 2020 for Mainland China and then sneaked into Hong Kong on 14 May 2020.   On 21 August 2020, he raised a non-refoulement claim by written signification.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

7.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[7] for reference.  In gist, he claims he will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay his loan borrowed from the moneylender.

8.  The Applicant did not attend the oral hearing scheduled for him on 13 July 2021 for hearing his appeal.  Having satisfied itself that notice of hearing had been duly served on the Applicant in accordance with section 13 of Schedule 1A to the Immigration Ordinance the Board issued a notice to the Applicant requesting for an explanation of his absence and informing him that the Board intended to make a determination after seven days.  As the Applicant did not respond, the Board proceeded to make a determination.

9.  The Applicant’s claim as set out in his non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows.  The Applicant claimed that in January 2020 he borrowed 700 million Vietnamese Dongs from a moneylender to start a livestock farm raising pigs.  At the beginning, he was able to pay the moneylender principal and interest.  In March 2020, all his pigs died because of the swine flu.  He was unable to pay the moneylender. In early April 2020, the moneylender and ten of his underlings armed with wooden poles went to the Applicant’s home to demand payment.  Upon hearing that he could not pay, they attacked him with fists and wooden poles (the “first incident”). Before they left, they threaten to come again towards the end of the month and beat him up if he could not pay.  The Applicant went to the hospital for treatment and purchased some medication home for self-treatment.  The moneylender and three of his underlings came towards the end of April.  The Applicant could not pay.  The moneylender threatened to kill him (the “2^nd incident”). The Applicant made no mention of any attack or injuries he suffered.  However, in his record of interview (“ROI”) he said he was assaulted and he went to see a doctor and was given some ointment.  Then, he fled to Hong Kong on 14 May 2020 via Mainland China.  He said in his ROI that he had never paid the moneylender.  He also said that the moneylender never injured his parents, wife and son.  He claimed that while in Hong Kong, he was beaten up by the moneylender’s men in Sham Shui Po on 4 July 2020 as a result of which he was hospitalized for ten days.  That incident resulted in his arrest. 

The finding of the Board

10.  The Applicant did not attend the hearing before the Board. Despite the Board’s request, he failed to offer any explanation for his absence.  There were numerous questions about the details of his claim which the Board wished to ask of the Applicant to help him to establish his claim for protection.  The Board was prevented from doing so by the Applicant’s absence at the hearing and failure to respond.  It found multiple and significant inconsistencies between the Applicant’s evidence in his NCF and ROI which cast doubt on the credibility of his case, such as whether he was attacked in the second incident and whether he had paid any capital or interest to the moneylender for January, February and March 2020.  The Board rejected his explanation for the inconsistencies.  It also found his failure to seek protection promptly after his arrival in Hong Kong but waited until a month after his chanced arrest in the hospital a negative factor which weighed heavily against the credibility of his claim.  It found the Applicant incredible.  It rejected his evidence about the loan and the debt recovery action taken by his alleged moneylender.  Its primary finding is that the Applicant had failed to establish the factual basis in support of his claim.

11.  The Board also went further and assessed the Applicant’s claim on the basis of his case put at the highest.  It made some further necessary finding of facts based on his evidence and country of origin information.  It found the injuries or ill-treatment suffered by the Applicant did not attain the minimum level of severity.  It found from the nature of the injuries suffered that the moneylender had no intention to really harm or kill him.  In particular, the moneylender could have caused the assailants to cripple or kill the Applicant in the attack in Sham Shui Po, but he never did.  It found the risk of harm on the Applicant’s return to Vietnam is low.  It found the dispute between the Applicant and the moneylender is a private dispute and the harm or risk of harm on his return to Vietnam would not be on account of any of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  It also found the Applicant could mitigate or avoid the risk of harm by seeking state protection or internal relocation.  Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.  Hence, it dismissed the Applicant’s appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.  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[8].

Grounds for judicial review

13.  Annexed to his Form 86 is a one and half page document titled ‘Grounds on which relief is sought’.  The document raised three grounds of application.  The rest of the document is about the relief sought and a brief account of the procedural steps taken by the Applicant in pursuing his claim.

14.  In his first ground, the Applicant argued that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the gangsters in Vietnam are too angry and cannot control their emotions and behaviour.  On the Board’s finding, the Applicant’s life would not be at risk of any of the proscribed harm, if returned to Vietnam.  In particular, the Board found in paragraph 75 of the Decision that the moneylender could have caused the Applicant to be killed or crippled in the attack in Sham Shui Po, but did not do so, evidencing a lack of intention to kill or to seriously harm the Applicant.  This ground is therefore a direct challenge of the Board’s finding of fact, which is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision. 

15.  Second, the Applicant disagreed with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender and his underlings because of his health, personality and the disadvantage he would suffer in the labour market.  These arguments had not been advanced before the Board.  After referring to country of origin information, the Board found in paragraph 95 to 98 of its Decision that the Applicant had failed to prove that the moneylender had resources to locate him anywhere in Vietnam and that being an able-bodied adult with his education and experience it would not be unduly harsh to expect the Applicant to relocate to other cities in Vietnam to avoid the harm and risk of harm.  This ground is a direct challenge of the Board’s finding of fact which is impermissible.

16.  Third, the Applicant said that with the nationwide social network his moneylender could locate him and harm him.  This same argument had been considered and dismissed by the Board in paragraphs 93 to 98 of its Decision.  It found in paragraph 96 that there is no evidence that the moneylender had the resource to locate him anywhere in Vietnam to harm him.  This ground is a direct challenge of the Board’s finding of fact, which is impermissible.

Overall scrutiny

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It identified multiple significant inconsistencies in the Applicant’s case.  It considered the Applicant incredible and his evidence unreliable.  It found he had failed to proof the factual basis in support of his claim for non-refoulement protection under any of the applicable grounds under the USM.  This is the primary basis of its decision.

18.  The Board also assessed the Applicant’s claim on the basis of the case as he asserted after making some necessary finding of facts.  Applying the law applicable to non-refoulement protection to those facts, it found the Applicant is also not entitled to protection under any of the applicable grounds under the USM.  This is the secondary basis of the Board’s Decision. 

19.  The Board’s findings under both basis are mixed finding of the law and of the facts.  It gave detailed reasons for its finding.  On the evidence, it was open to the Board to make those findings as it did.  Insofar as its finding are finding of the law, it is absolutely correct.  Insofar as its finding are finding of fact,  they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

20.  The Form 86 was filed more than three months out of time and without any explanation for the delay.  The proposed judicial review has no realistic prospect of success.  For these reasons, both leave to file the Form 86 out of time and the leave application are refused.

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