Nguyen Van Cuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 439/2022

[2026] HKCFI 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 439 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Levy:

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.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 7 June November 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 May 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 29 June 2021 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000439_2022_files/the_Board's_Decision.pdf

2.In his Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly.

3.The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor for an outstanding loan. 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.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 March 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 13 February 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[3]  It is 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[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In his Form 86, the applicant put forward a number of grounds. However, most of the allegations were against the Director or repetitions of the facts of his claim. The only decipherable ground that was against the Board’s Decision was the averment stated in [9] of the Form 86 in which the applicant averred that the Board’s Decision was unsafe and that it was wrong for the Board to rule that the applicant was unreliable. The supporting affirmation provided no grounds at all.

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.[5]  In the present case, the Board found that the applicant’s story regarding the loan collection incidents from the creditor was internally consistent. However, the Board found that the applicant would not face any real risk of harm if refouled as the past ill-treatment did not meet the minimum requisite level of severity. The Board also found that state protection and internal relocation were reasonably available.

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 applicant’s grounds contained in the Form 86 were vague and did not condescend to particulars. 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[6].

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.

Dated the 24^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