Nguyen Duc Viet v. Director of Immigration

HCAL 938/2023

[2026] HKCFI 5346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 938 of 2023

BETWEEN

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 Applicant being absent 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.This is the applicant’s application for leave to apply for judicial review of the Notice of Decision dated 10 May 2021 of the Director of Immigration (“the Director’s 2^nd Decision”), refusing his subsequent claim application.

2.His application is late. His application shall not be later than 3 months from the date of the Director’s Decision[1], which expired on 10 August 2021. His application was filed on 14 June 2023, which is late for more than 1 year and 10 months.  This issue will be dealt with below.

3.The applicant was absent at the hearing on 9 September 2026.  I shall deal with his application on the papers.

4.The Director’s Decision was written in Chinese whereas this Form CALL-1 is written in English.  This is because the applicant has filed his affirmation 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 his loan.

6.Details of the applicant’s story can be found in the Board’s Decision. See paragraph 9 and hyperlink.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000938_2023_files/the_Board's_Decision.pdf

The Director’s Decisions

7.The applicant first lodged his non-refoulement claim with the Director on the following applicable 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 December 2016 (“the Director’s 1^st Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

9.The applicant appealed against the Director’s 1^st Decision to the Torture Claims Appeal Board (“the Board”).  The Board dismissed his appeal by Decision dated 9 November 2017 (“the Board’s Decision”).

10.Instead of applying to the Court of First Instance for leave for judicial review of the Board’s decision, the applicant lodged his subsequent with the Director.

11.By the Director’s 2^nd Decision, the Director refused his subsequent claim application because he failed to adduce evidence of new circumstances since his previous claim that, when considered together with the previous claim, will give him a practical prospect of success for his subsequent claim.  Although he claimed to have borrowed a loan from another creditor, and he was unable to repay the loan; and also, he feared that he may be seriously harm or killed by the new creditor, the Director held that the nature of his fear is not different from his previous claim, which had been assessed and rejected by the Board.  If he returns to Vietnam, state protection will be available to him, and he had said that his elder sister will be repay the loan for him.

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

12.The applicant has filed Form 86 dated 14 June 2023 for leave to apply for judicial review of the Director’s 2^nd Decision.

13.The applicant said in his affirmation that the Director’s 2^nd Decision is wrong as he did not consider his right to life; that the Director did not consider state acquiescence; that the Director had placed too much reliance on the country-of-origin information, without considering his personal background and experience and the Director unreasonably refused to accept his evidence; that the Director had asked him to answer questions that he was not in a position to offer any response; that the Director had not given due weight to the evidence that the state was corrupt and incompetent; and that he the Director has not attained high standards of fairness in assessing his case.

DISCUSSION

14.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 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. The applicant has not raised any reason to challenge the Director’s 2^nd Decision.  The reasons under paragraph 13 are bare assertions without any evidence in support.  They are not valid to challenge the Director’s 2^nd Decision.

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.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Director’s 2^nd Decision.

DISPOSITION

18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Director’s 2^nd Decision.  Accordingly, I dismiss his application.

Dated the 23^rd 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