Nguyen Tran Tu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 840/2022

[2026] HKCFI 4863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 840 of 2022

BETWEEN

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 Andrew Li:

1.  The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration as the putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 29 August 2022 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 23 August 2022 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 9 September 2021 in refusing the applicant’s non‑refoulement protection claim. He named the Board and the Director as the proposed respondents but neither of them was listed as interested parties.

2.I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

3.The applicant requested for a hearing but he was absent at the scheduled hearing on 20 August 2026. From the court record, the Notice of Hearing dated 27 July 2026 was sent to an address updated through the Immigration Department. Such updated address was, presumably, provided by the applicant to the Immigration Department in the first place.

4.Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the same logic, if the applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

5.I therefore decided to proceed to deal with this application on paper notwithstanding the applicant’s absence at the hearing.

BACKGROUND

6.The applicant is a national of Vietnam. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or killed by his creditor. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same herein.

DISCUSSION

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In the “Grounds on which relief is sought” attached to the Form 86, the applicant merely repeated his reasons why non-refoulement protection was sought in the first place. He also raised the issue that the Director’s suggestion that he should relocate to another city within his own country is “completely unfeasible” in his case due to his health and other personal factors. Lastly, he considered that with the nationwide social network of gagsters and clandestine connections with corrupt people in the government and police apparatus, it is quite possible that his creditor and gangsters will able to find out his new residence.

9.Insofar as the reasons for the non-refoulement protection are concerned, they have been fully considered by the Board in the appeal and it is not the function of this court in an application for leave to appeal to re-consider them. As regard to the purported grounds of review made against the Director, it has been held that the Director’s decision is not susceptible to judicial review once an appeal to the Board had been pursued: See Re Raschpal Singh [2020] HKCA 978 (as the then was) at §§40-41.   

10.I noted that the applicant has not pointed to any errors of laws, procedural unfairness and irrationality in the Board’s Decision.      

11.Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [10-14].

12.It took into consideration the applicant’s case and evidence [15-26].

13.After analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out [27-31].

14.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

15.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 8^th day of September 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