Bui Ngoc Quan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 603/2022

[2026] HKCFI 1442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 603 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:

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 12 July 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 18 January 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 August 2021 (the “Notice”) refusing his application for non-refoulement protection.

2.The Applicant had requested an oral hearing.  A hearing on 2 March 2026 was scheduled for him and Notice of Hearing was sent to him by post on 12 February 2026 to his address as stated in his Form 86 and his address as discovered from the Immigration Department on 6 February 2026.  Neither of the notices has been returned through the post.  The Applicant had never informed the court of any change of address since filing his Form 86.  There is nothing to suggest that he had not received either of the notices or had moved.  An attempt had been made on the afternoon of 27 February 2026 to contact him by telephone on the number provided by the Immigration Department to remind him of the hearing.  The call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.  The Applicant did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The law and explanation for the late application

3.The leave application was filed five months and twenty-four 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 almost three months after the date of the Decision sought to be reviewed.  Extension of time to file the leave application is required.

4.In AW and Director of Immigration and William Lam CACV 63/2015 (unreported) 3 November 2015, 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 (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ , per Litton PJ. 

5.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.  He did not attend the hearing and forwent his opportunity to explain the delay.  Hence, the Court could only come to the conclusion that his leave application was not promptly made and he had no explanation for the long delay.  The delay falls within the ‘many months’ category for which leave may be refused “however strong the complaint might otherwise be”.  Nevertheless, for completeness, the Court also examined the merits in the intended judicial review.

The Applicant’s case

6.The Applicant is a Vietnamese national, aged 29. He was arrested by the police on 21 September 2020 suspected as having entered Hong Kong illegally. Then, he lodged a non-refoulement claim on 14 October 2020, claiming to have sneaked into Hong Kong on 29 August 2020.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”) and 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

7.The Applicant’s 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 loan owed to the moneylender.

8.In his non-refoulement claim form (“NCF”), the Applicant claimed to have borrowed 1,200 million Vietnamese Dong (“VND”) for a term of ten months in June 2019 to start a restaurant.  The loan was secured against his mother’s house.  He had to pay a monthly interest of VND 40 million for the first three months and then VND 30 million for the rest of the term, ie seven months.  The business suffered loss since January 2020 and ceased in April 2020.  As he was unable to repay his loan, he was assaulted by the moneylender and threatened with death.  Thus, he sneaked into Hong Kong in July 2020.

The finding of the Board

9.The Board studied extensively into the country of origin information of Vietnam (“COI”), in particular about moneylending practice in Vietnam and tested the Applicant’s case against the COI and common sense.  It found multiple significant discrepancies and inconsistencies between his evidence in his NCF and testimony before the Board, and numerous and significant impossibility in his case.  His account about the loan was also inconsistent with the usual practice of moneylending as described in the COI.  The Applicant’s failure to explain these inconsistencies and implausibility led the Board to the conclusion that he was not a witness of truth. 

10.The terms of the loan as recounted by him in his testimony were that he borrowed VND 1,200 million, but was only paid VND 1,100 million; he had to pay monthly interest of VND 15 million, totaling VND 150 million for ten months, ie 25%[2]; and not VND 40 million for the first three months and VND 30 million for the remaining seven months, totaling VND 330 million for ten months, ie 43%[3]. The terms as described by him in his NCF and testimony were so significantly different that they appeared as if they were terms of two different loans.  He said his business started in February 2019 before he received the loan in June 2019.  He was unable to explain how he could have started the business without first having obtained the loan.

11.The Board found his account about the loan inconsistent with the usual practice of moneylending as described in the COI.  According to the COI, the usual interest charged is an exorbitant rate of 180% to 300% per annum while the rate according to the Applicant’s case were far below that norm.  According to the Applicant and contrary to the COI, the moneylender never asked him about his background and repayment ability.  It was implausible that the moneylender would have lent such a huge sum in the light of his background, working experience and past income.  It was also incredible and implausible that the moneylender never enforced the security as the Applicant’s family were still residing in his mother’s house. 

12.The Applicant said he rented a piece of land from the landlord at a monthly rent of VND 10 million and incurred VND 600 million to construct a house on the land to be used as his restaurant.  His evidence that he incurred such a huge capital on a rented piece of land which he could not recover was devoid of common sense and business sense.  His evidence that he had to pay one year’s rent as deposit was also inconsistent with usual deposit of three months’ rent.  That apart, his evidence that he paid VND 100 million as deposit was also inconsistent with other aspects of his evidence.

13.The Board was also concerned with the Applicant’s total lack of knowledge about business tax and value added tax and other basic requirements in running a business in Vietnam, such as obtaining a licence for the business and opening a bank account.  It was also concerned about various other inconsistencies in his evidence about the ill-treatment by the moneylender, such as whether he was detained by the moneylender or by his underlings and the duration of his detention.

14.The Board considered these inconsistencies and implausibility were fatal to the centerpiece of his case and his claim.  On the totality of his evidence, it found the loan from the moneylender was a fabrication.  With that finding, it also followed that his claim of harm and ill-treatment from the moneylender was also a fabrication.  The Board therefore came to the conclusion that the Applicant had failed to discharge the burden of proving the factual basis to support his claim for protection under any applicable grounds under the USM.

15.For the sake of completeness, the Board also assessed his claim on the basis of his case as he asserted and some necessary secondary finding of fact based on his own case.  It found the alleged ill-treatment, even if not rejected, did not attain the minimum level of severity, fell outside the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance, and did not arise on account of any of the reasons stipulated under the 1951 Convention relating to the status of refugees and its 1967 Protocol. It found the dispute between the Applicant and the moneylender was a private monetary dispute in which neither the Vietnamese government nor a state agent was involved.   

16.The Applicant never reported the threat or ill-treatment to the police.  On the basis of the COI, there was an effective criminal system, a national police force to enforce the law and to protect the citizens against illegal debt collection activities.  On the Applicant’s own evidence, it was his choice not to seek police assistance and not that the Vietnamese government was not willing or incapable to enforce the law.  The Board found adequate state protection was available.   Though not necessary for its Decision, the Board also found it would not be unreasonably or unduly harsh for the Applicant to relocate within Vietnam to avoid the risk of harm from the moneylender, if necessary.

17.Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds.

18.For the above reasons, the Board dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

19.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

20.The Applicant had not advanced any grounds of application in his Form 86.  In his supporting affirmation, he reiterated the danger to his life upon his return to Vietnam.  In substance, he is challenging the Board’s finding of fact that he had failed to discharge the burden of proving the factual basis to support his claim for protection under any of the applicable grounds under USM.  For reasons as explained in the above paragraph, that is not permissible.  He also forwent his last opportunity to advance any grounds of application or submission by not attending the hearing. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

21.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 studied the COI relating to Vietnam extensively, in particular the moneylenders’ usual practice and availability of state protection.  It analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  On the evidence, the Board found the Applicant was not a witness of truth and rejected his case.  Hence, it found the Applicant had failed to discharge the burden of proving the factual basis to support his claim for protection under all applicable grounds under the USM.  It gave full reasons for its finding.  This is the primary basis of the Board’s Decision.

22.For completeness, it went on to assess his claims on the basis of the factual case as he asserted.  It made some further necessary finding of fact.  Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as he asserted, the Board found he had failed to prove his entitlement to protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings 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 that the Decision is irrational.  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 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.  There are no merits in the intended leave application.

Conclusion

23.For the above reasons, extension of time to file the on 86 and the Applicant’s 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