Bui Ngoc Nam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1274/2022

[2026] HKCFI 5944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1274 of 2022

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.The applicant applies for leave to apply for judicial review of the Decision dated 9 August 2022 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 9 November 2022.  His application filed on 16 November 2022 is late for 7 days.  This issue will be dealt with below.

2.The applicant was absent at the hearing on 14 October 2026.  I shall deal with his application on the papers.

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.

The applicant

4.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 debt.  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/2022/HCAL001274_2022_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered his non-refoulement claim on the following risks:

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

(2)  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”);

(3)  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

(4)  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”).

6.By way of Notice of Decision dated 31 December 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.  The applicant appealed to the Board.

The Board’s Decision

7.On 16 June 2022, the Board conducted an oral hearing.  The applicant had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found that the applicant had suffered no severe injury [49]-[52]; that he changed his evidence and fabricated stories from time to time in the hearing and the Board found him not a credible witness [92]; that there was no evidence that the state was involved [112]; that based on the evidence, his story was simply a fabrication and no credence can be given to it [120]-[125]; that state protection will be available to him if he returns to Vietnam [138]; and internal relocation is viable [174].

9.For the above reasons, the Board dismissed his appeal against the Director’s Decision.

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

10.The applicant filed Form 86 dated 16 November 2022 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant has attached a statement of grounds in support of his application.  In the statement of ground, the applicant said that the Board’s Decision is unfair and unreasonable, without considering his right to life; that the adjudicator has relied too much on the country-of-origin information without considering his personal background and experience; and that the adjudicator had required him to answer questions that he was not in a position to offer any response.

DISCUSSION

12.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.

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The grounds under paragraph 11 are bare assertions without any evidence in support.  They are invalid to challenge the Board’s Decision, which appears to bear no error in law or procedural irregularity, or is otherwise irrational.

15.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.”

16.The applicant has not given any explanation for his delay.

17.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

18.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 28^th day of October 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