Nguyen Xuan Chinh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 430/2026

[2026] HKCFI 2041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 430 of 2026

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 November 2021 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 11 February 2022. His application was filed on 20 February 2026, which is late for more than 4 years. This issue will be dealt with below.

2.The applicant appeared before the Court on 25 March 2026.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

4.The Board’s Decision is in Chinese. This Form CALL-1 is in English because the applicant filed his affirmation in support of his application in English.

The applicant

5.The applicant is a national of Vietnam. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay the loan.

6.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000430_2026_files/the_Board's_Decision.pdf

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 30 September 2020 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 28 April 2021, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

10.Having considered the evidence, the Board found that his evidence was not believable because he said that he had charged a property registered in the name of his father. The value of the property on sale will be enough to cover the debt. However, he deposited only a copy of the title deed of the property, therefore, the creditor was unable to sell the property. The original of the title deed is in his father’s possession. There is no reason that the creditor should force him to repay rather than forcing the father to produce the original title deed. His father is also one of the borrowers. [41]‑[43] The Board further found that internal relocation is viable if he returns to Vietnam. [57]

11.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 20 February 2026 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has raised the grounds below in support of his application.

(1)  The delay is not deliberate and there is no substantial prejudice to the Director if time is extended.

(2)  The Board’s decision on the credibility issue is irrational. It relied on speculation regarding private lending practices and has failed to properly assess his evidence.

(3)  The Board has misapplied the “real risk” test in relation to BOR 3 risk as it required certainty rather than possibility of real risk.

(4)  The Board failed to consider state acquiescence because of lack of effective of police protection.

(5)  The Board’s internal relocation finding was speculative and failed to assess whether relocation would genuinely remove the risk or would be unduly harsh.

(6)  The Board’s Decision is unlawful and procedurally unfair.

DISCUSSION

14.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he had given the full story to the Board for its consideration.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The reasons under paragraph 13 are the applicant’s bare assertions or opinions without any evidence in support. They are invalid to challenge the Board’s Decision[2].

18.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 22^nd day of April 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