NGUYEN THAI HUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 849/2026

[2026] HKCFI 3237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 849 OF 2026

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 or counsel 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 application for leave to apply for judicial review 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 5 May 2026, 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 6 August 2025 (“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/2026/HCAL000849_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 May 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board, “NON-REFOULEMENT CLAIMS PETITION OFFICE” and the Director as the putative respondents and the Board as the putative interested party in Form 86.

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

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent 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 the name of the putative interested party to “Director of Immigration”.

Late application

7.  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.

8.  However, the applicant filed Form 86 on 5 May 2026, which was more than 8 months after the Board’s Decision (made on 6 August 2025). The applicant was hence late for more than 5 months 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.

9.  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.

10.  The applicant did not explicitly make an application for extension of time when he filed the Leave Application. However, he did give his reason for the late filing of the Leave Application by his letter dated 25 March 2026, which was attached to his supporting affirmation dated 5 May 2026. This court will treat it as an application for extension of time to file the Leave Application.

11.  The applicant stated in the said letter that he had been jailed and he had to wait for a friend who would send money to him, and therefore he could not complete Form 86 in time. He also added that he would like to request to refuge in Hong Kong longer, and if he returned back to Vietnam at present, his life would face a lot of dangers.

12.  A delay of more than 5 months is significant. Even if the explanation given by the applicant in his said letter was accepted, there is no merit 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.

13.  The Leave Application can therefore be dismissed for being made out of time alone. This court will discuss the merits of the Leave Application below.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his moneylender named BINH due to his inability to repay the loan obtained from BINH.

Disposal on paper

16.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

17.  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).

18.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 5 May 2026, the applicant merely stated that his life would face a lot of dangers if he was to return to Vietnam.

Discussion

19.  First of all, the applicant’s alleged danger in his country had been duly assessed but rejected by the Board. If he 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 the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

22.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 18 July 2025. The applicant was present and was thus given the 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’s risk of harm upon refoulement was low.

24.  The Board found that the applicant’s dispute with the moneylender was only a personal dispute arising from the applicant’s inability to repay a loan. There was no involvement of any public official in the applicant’s dispute with the moneylender. The applicant was never physically harmed by the moneylender. The applicant’s fear of the moneylender was not for a Convention reason.

25.  Further, the Board found that the applicant had never reported any threats from the moneylender to the police and thus there was no basis for his allegation that the police would not protect him. The Board found that the Vietnamese government had taken steps to combat corruption and to protect its citizens.

26.  Further, the Board had laid out its full reasons in paragraphs 35 to 40 of the Board’s Decision for its conclusion that internal relocation in Vietnam was a viable option to the applicant. There was no evidence to support the applicant’s assertion that the moneylender had triad society background or had large network sufficient enough to locate the applicant anywhere in Vietnam.

27.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

28.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  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.

30.  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

31.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused. 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