Luu Van Dai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1071/2020

[2025] HKCFI 2758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1071 of 2020

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 2 June 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 17 April 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 April 2017 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.In the Form 86, the applicant did not name any interested party. As the Director should have been the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

Background

3.The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.The applicant is a national of Vietnam. He came to Hong Kong illegally on 20 June 2015 after having arrived in China on 14 June 2015. On 23 June 2015, the applicant lodged a non‑refoulement application, relying on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by his creditor and his subordinates for an outstanding loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.On 2 June 2025, the applicant filed an affirmation, seeking for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.In his affirmation in support of the Leave Application, the applicant only stated that his life would be in danger if he were to return home as he had borrowed a large sum of money from his gangster-related friends. However, in the Form 86 or otherwise, the applicant was not able to say as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its decision, or how such decision could be said to be Wednesbury unreasonable. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[8] In the present case, the Board found that the applicant’s evidence was not credible or reliable. The Board did not accept that the applicant had borrowed big sum of money from the moneylender. It found that the applicant’s story of harm and ill treatment from the moneylender was also a fabrication. Hence, the Board rejected the applicant’s claims. The Board further found that state protection and internal relocation were both reasonably available. The Board rejected the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[9].

11.Furthermore, the Leave Application was filed out of time. The applicant has not given any reason for the delay of about 10 months. In the absence of any explanation for the delay and the lack of merits, this court would also refuse to extend the time for the filing of the Leave Application.

Withdrawal of Leave Application

12.In the affirmation, the applicant stated that it was safe for him to go home and he would like to go home as soon as possible. He further confirmed that he made the application out of his free will and understood that upon the withdrawal, the Leave Application would end and that the Board’s Decision shall remain in force.

13.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

14.The Form 86 is amended on the court’s own motion.

15.The Leave Application be dismissed.

Dated the 8^th day of July 2025

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