Case Document

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HCAL 1052/2023

[2026] HKCFI 5261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1052 OF 2023

BETWEEN

	Do Van Nghia	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 29 June 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 August 2022 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001052_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 July 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s claim for non-refoulement protection.

Amendments

3.The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86.

4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

Late application

7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.However, the applicant filed Form 86 on 29 June 2023, which was more than 10 months after the Board’s Decision (made on 12 August 2022). The applicant was hence late for more than 7 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court, the applicant first explained the delay by saying that he did not have the money to make the Leave Application and he borrowed money in order to do so. When this court asked why he did not borrow money earlier for the purpose, the applicant then changed his story and said that he did not know about the procedures. He only heard from a friend later that he could make such an application, and therefore he borrowed money to file the application.

11.A delay of more than 7 months is very substantial, and the explanations given by the applicant are clearly not satisfactory. Ignorance of the court procedures is generally not an excuse. Moreover, if he indeed had a friend who was familiar with the procedures, he could have asked his friend shortly after he received the Board’s Decision and obtained money to make the Leave Application without such a long delay.

12.More importantly, there is no merit of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

13.However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

15.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor due to his inability to repay a loan of 500 million Vietnamese Dong.

Oral hearing

16.The applicant requested for an oral hearing of the Leave Application and his case was heard on 10 September 2026.

17.When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in a document annexed to his Form 86 with the title “Grounds on which relief is sought”, he first replied that he did not know what grounds were mentioned therein.

18.After the said document was interpreted to the applicant, he confirmed that he would rely on the contents stated therein, he had nothing to add and that he had written the grounds himself previously.

Grounds for judicial review

19.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.The contents of the said document with the title “Grounds on which relief is sought” were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

21.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing and only confirmed that he would rely on the same for his intended judicial review.

Discussion

22.As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

23.There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application.

24.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.

25.In any event, the Board did assess the applicant’s risk of right to life but concluded that on the totality of evidence, the applicant had failed to establish a personal and real risk of absolute and non-derogable rights under BOR 2[1] being violated if he was refouled to Vietnam (see paragraphs 88 to 90 of the Board’s Decision).

26.In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

27.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was unreasonably required to answer.

28.There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

29.In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

30.The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection. The Board’s rejection of his non-refoulement claim was a decision made after due consideration of the law and the evidence placed before it. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in an application for judicial review.

31.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

32.Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

33.The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

34.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

35.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 December 2021 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

36.The Board laid out its findings on the credibility of the applicant and its assessment of the applicant’s case on all the applicable grounds under the USM in paragraphs 45 to 106 of the Board’s Decision, and it is not necessary to repeat the same here.

37.In gist, the Board found that the applicant’s story was internally consistent as to the loan collection incidents from the creditor.

38.However, the Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. There was only one physical attack on the applicant. The Board did not accept that the ill-treatment, whether physical or mental, attained a minimum level of severity. The creditor was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. Avoidance of loan repayment was clearly not one of the RC[2] reasons.

39.Moreover, the Board found from COI that although there were materials that indicated corruption and illegal moneylending were common in Vietnam, the Vietnamese government had taken practical steps to improve the protection offered to the citizens, the monitoring system to govern the professional conduct of the police forces, to combat corruption and illegal moneylending. The Board found that reasonable state protection was available to the applicant, and there was no ground based on well-founded fear for refusing it.

40.Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

41.Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

42.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

43.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

44.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

45.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

46.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

Dated the 16^th day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or the applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 16/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 16/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18476/21/8/64/V2977 Director of Immigration Putative interested party’s ref. no.: QA T/C 550/21(Formerly RBCZ 158/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)