Le Van Hai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1308/2023

[2025] HKCFI 3594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1308 of 2023

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 July 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 7 July 2025. 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, aged 31, is a national of Vietnam. On 6 September 2021, he was arrested by police for illegally remaining in Hong Kong. He lodged a non-refoulement claim for the reason that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed 500 million Vietnamese currency for his aquatic business, which failed and he was unable to pay the interest on the loan. The creditor had threatened to kill him. He had also sent his people to his home where they beat him up and vandalized his home with excretion.

5.Details of his claim are set out at paragraphs 26-34 of the Board’s Decision. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001308_2023_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following 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”).

7.By way of the Notice of Decision dated 21 June 2022 (“the Director’s Decision), the Director dismissed the applicant’s claim as it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 June 2023, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that there was no evidence to show that his creditor intended to kill him; that there was no evidence to show that the creditor was in any way connected with the state; that state protection will be available; that the Vietnamese government has been trying hard to deal with corruption in Vietnam; and that internal relocation is viable.

10.For those reasons, the Board agreed with the Director and dismissed the applicant’s appeal.

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

11.The applicant has filed Form 86 dated 31 July 2023 for leave to apply for judicial review of the Board’s Decision. He has stated his grounds in a statement attached to Form 86, which, as far as the Board is concerned, can be summarized as follows:

(1)  The Board had reached a wrong decision because it had not considered BOR 2 risk.

(2)  The adjudicator acted unfair in that he had placed too much reliance on country of origin information and failed to take into account his personal background and experience. The adjudicator had also demanded him to respond to questions that he was not in a position to offer any response.

(3)  The adjudicator dismissed his appeal wrongly.

12.In his affirmation in support of his application, the applicant did not raise any other specific ground to challenge the Board’s Decision.

DISCUSSION

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.

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 raised no valid ground to challenge the Board’s Decision.

17.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 grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 21^st day of August 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