Nguyen Minh Duc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 514/2022

[2026] HKCFI 1439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 514 of 2022

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 To dated 25 February 2026:

1.   Extension of time to apply for leave for Judicial Review 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 22 June 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 11 February 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 July 2021 (the “Notice”) refusing his application for non-refoulement protection.

2.The Applicant is a Vietnamese national.  He was arrested on 21 August 2020 for having unlawfully entered Hong Kong.  On 29 September 2020, he filed a claim for non-refoulement protection.  His claim was rejected by the Director.  His appeal against the Director’s decision was dismissed by the Board.  He now applies for leave to apply for judicial review of the Board’s Decision.  His personal background, the factual background leading to the present application, the basis of his previous claim and 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.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.  In gist, he claims he will be harmed or killed by a moneylender for being unable to repay his parents’ or his mother’s debt owing to the moneylender. 

3.The Applicant’s case is that in about 2011, his parents/mother borrowed a loan from a bank (the “bank loan”) using their land and house as security for the purpose of starting a chicken farm business.  The business suffered a loss.  In about 2013, his parents/mother borrowed another loan from the moneylender to pay off the bank loan.  Then, they were unable to pay the moneylender.  As a result, the moneylender threatened and harmed them.  To avoid further ill-treatment, his parents and brother fled leaving the Applicant behind.  After they had left, the moneylender kept on ill-treating the Applicant.  The Applicant lost contact with his family and was scared.  In 2020, he fled to Mainland China.  From there, he sneaked into Hong Kong.

4.The Applicant testified before the Board.  The Board found multiple significant discrepancies in his evidence among his witness statement, his non-refoulement claim form (“NCF”) and his testimony before the Board.  These discrepancies go to the centerpiece of his claim, ie the existence of the loan and the ill-treatment.  He said in his witness statement and NCF that he had no knowledge about the name of the moneylender, the terms of the loan, the size of the family house, the land and the chicken farm.  The Board found it incredible that he did not even know the size of his family house in which he had lived for eighteen years. 

5.He said he had lost contact with all his family members and was scared.  On the other hand, he told the Board that since he stopped schooling in 2018, he stayed at home.  He was not required to work and just played computer game all the time until he left Vietnam in 2020.  The Board could not accept that he was not all alone and scared.  Someone must have supported him by providing him with internet connection, electricity and other utilities and meal everyday. 

6.In his NCF, he said his brother had left Vietnam before 2016 and he had since lost contact with him.  But he told the Board that his brother worked as a security guard in Hanoi before he came to Hong Kong in 2020 and he was able to contact him in Vietnam.  He is also living with his brother at the time of the hearing before the Board.  However, he gave conflicting accounts as to how he came to meet his brother in Hong Kong, which also involve an element of implausibility. 

7.The Board found inconsistencies between the Applicant’s witness statement and the NCF as to whether his father was also involved in the borrowing of the loan and in the running of the chicken farm or, as he said in his testimony, that he was just a truck driver and had no time to work in the chicken farm. 

8.When the Applicant’s case was tested against the country of origin information (“COI”), the Board found it implausible that the moneylender would have lent knowing that his parents were in financial difficulty and were unable to repay the bank loan.  It is also implausible that the moneylender would have lent without asking his parents to use their house and land as security.

9.In conclusion, the Board found the Applicant evasive and not telling the truth.  In view of the discrepancies in his evidence and the impossibilities in his case, the Board attached no credence to his evidence.  It found the Applicant’s claim about the loan and ill-treatment are mere fabrications.  For these reasons, the Board came to the conclusion that the Applicant had failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).

10.However, the Board went further.  It also assessed the Applicant’s claims on the basis of the factual case as he asserted.  On the basis of authoritative and credible COI, the Board found the Vietnamese government had in place measures to improve police efficiency and combat corruption and that there is a reasonable legal system in Vietnam to enforce the law.  It was the Applicant who chose not to report the moneylender’s threat and ill-treatment to the police and not that he had been denied protection by the police.  It found the Applicant had failed to discharge the burden of showing why he could not obtain and seek state protection.

11.The Board also made further specific finding of fact.  It found that the dispute between the Applicant and the moneylender was a private dispute in which the government of Vietnam was not involved, that the moneylender was not a state actor when inflicting harm and ill-treatment on the Applicant, that there was no evidence that the ill-treatment suffered by the Applicant attained the minimum level of severity as to meet the definition of ‘torture’ under the Immigration Ordinance, and that the ill-treatment he suffered was not on account of any of the reasons under the 1951 Convention relating to the status of refugees and its 1967 Protocol.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found even on the basis of the factual case as asserted by the Applicant, he had failed to establish his entitlement to protection under any of the applicable grounds under the USM. 

12.For the above reasons, the Board dismissed the Applicant’s appeal against the Board’s Decision.

The law

13.The leave application was filed four months and eleven days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application had not been lodged promptly, being made more than three months after the date of the Decision sought to be reviewed.  Extension of time to file the leave application is required.

14.In AW and Director of Immigration and William Lam[2], 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[3], per Litton PJ.  The delay in this case so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

Length of the delay and explanation for the late application

15.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  At the hearing, after the relevant legal provisions as mentioned in the above paragraphs had been explained to him, the Applicant said he could not remember when he received the Decision because that was a long time ago.  Despite the Court’s attempt to refresh his memory that he had come to the High Court to file his Form 86 on 22 June 2022, he could not even remember how long after he received the Decision did he come to file the Form 86.  He frankly admitted that he received the Decision sent to his place of abode and that it was many months later that he filed the Form 86.  His answer suggests there was no delay in the course of mail.  Despite much prompting, he could not explain why it took him so many months to make up his mind to apply.  He had no valid explanation for the rather long delay.  Though the delay was one month and eleven days after the three months’ period, the leave application was only lodged after four months and eleven days.  It was not promptly made.

Merits of the intended leave application

16.The Applicant advanced the following three grounds of application in his Form 86.

17.First, he submitted 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 cruel and violent.  They disregard the law and are willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the Board’s finding of fact that he had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds under the USM, which is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.  On that finding, his life would not be at risk of any of the proscribed harm, if returned to Vietnam.

18.Second, he disagreed with the Director’s suggestion that he could relocate to live in other location to avoid the gangsters because of his health, personality and that the disadvantage he would suffer in the labor market.  For his benefit, the Court assumed that this ground is directed at the Board. Internal relocation is a non-issue because the Board found the Applicant had failed to prove his risk of harm.  As the Board had pointed out in paragraph 108 of its Decision, it was not strictly necessary to deal with the question of internal relocation.  Furthermore, his claim about his health, personality and his disadvantage in the labour market had not been raised before the Board.  On the evidence before the Board, he had failed to discharge the burden of proving that internal relocation was viable.  This is a finding of fact by the Board which the Applicant may not challenge in an application for judicial review save for errors of law, procedural unfairness or irrationality in the Decision and no such vitiating elements were pleaded.

19.Lastly, he claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find him out and harm him.  This is also impermissible as a challenge against the Board’s finding of fact.  This argument had been advanced before the Board.  It was dismissed in paragraph 111 of its Decision for the same reason as mentioned in the preceding paragraph.

20.Having also anxiously scrutinized the Board’s Decision, the Court could not find any apparent errors of law, procedural unfairness or irrationality in the Decision.  For the above reasons, this Court finds there is no merit in the intended leave application.  In the circumstances, it is not necessary to consider whether the Applicant would suffer any prejudice if leave is refused as there is no merit in the application.  All the legal issues raised by this leave application are all well-settled.  There are no questions of general public importance involved in the intended judicial review which would likely have to be resolved by the courts in any event.  Hence, this Court finds there is no good reason for extending the period to apply.

Conclusion

21.For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

Dated the 13^th day of March 2026

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