Case Document

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HCAL 2185/2024

[2026] HKCFI 5661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2185 OF 2024

BETWEEN

	Ngo Quang Tuan	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 or counsel 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”.

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 18 November 2024, 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 7 November 2024 (“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/2024/HCAL002185_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 June 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent in Form 86, when only the Board should be so named.

4.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.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed and killed by his creditor named Nguyen Quang Truong (“Nguyen”) due to his inability to repay a loan obtained from Nguyen.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.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).

10.The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 18 November 2024, the applicant mentioned a few matters, which are summarised as follows:-

(1)  He had no knowledge of English or Chinese so he did not know how to proceed with his application for judicial review;

(2)  He did not have the financial means to obtain concrete legal advice regarding the procedure of appeal;

(3)  His life would be in danger because his creditor and his creditor’s subordinates could have inflicted more serious harm had they intended to do so; and

(4)  He did not have any source [sic] to rely on since his family was very poor and they were unable to help him to solve his problem.

Discussion

11.First of all, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

12.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.

13.In respect of the applicant’s allegation that there was a lack of legal assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim and was also represented by counsel before the Board. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.

14.Finally, the applicant’s alleged risk from his creditor had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

15.Thus, none of the matters raised in the applicant’s affirmation constitutes any valid ground to challenge the Board’s Decision.

16.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).

17.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 October 2024. As aforesaid, the applicant was represented and was thus given the chance to present his case to the Board by his legal representative.

19.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

20.The Board had laid out its consideration of the applicant’s case on all the applicable grounds under the USM in paragraphs 30 to 44 of the Board’s Decision. In gist, the Board found that the applicant’s case was only a private dispute between him and the creditor. It was clear that the treatment he received did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance, nor attained a minimum level of severity required for international protection. The element of state acquiescence was lacking. His fear of ill-treatment from the creditor did not fall within the definition of persecution.

21.Further, the Board had given full reasons in paragraphs 45 to 47 of the Board’s Decision for its conclusion that the applicant should have no difficulty to live a normal life in a province or city other than his own in order to avoid Nguyen.

22.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

23.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

24.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.

25.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

26.For reasons aforesaid, the Leave Application is dismissed.

Dated the 7^th day of October 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 his 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: 07/10/2026 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: 07/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 23922 Director of Immigration Putative interested party’s ref. no.: QA T/C 500/24 (Formerly RBCZ 5002015/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)