Do Van Thoai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 709/2023

[2025] HKCFI 3568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 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:

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 31 May 2022 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Notice of Decision dated 9 July 2021 (“the Director’s Decision”) that rejected his non-refoulement claim.. 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 31 August 2022. His application was filed on 15 May 2023, which is late for more than 8 months. This issue will be dealt with 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 is a national of Vietnam. He was arrested by the Immigration Department for illegal remaining in Hong Kong on 29 September 2020. He was sentenced to 15 months imprisonment. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditors from whom he had borrowed 2100 million Vietnamese currency for his aquatic business, which failed and he was unable to repay. The creditors had gone to his home with other subordinates to demand repayment. As he failed to repay, they attacked him with a broken glass on his head, causing bleeding. They threatened to kill him and his family if he failed to repay his loans. He had received medical treatment for his wound. He did not report the matter to police. Fearing that the creditors would harm him, he and his wife came to Hong Kong in order to avoid them.

5.Details of the applicant’s story can be found in paragraphs 29-44 of the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000709_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.The Director refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The applicant requested that there should be no hearing for his appeal. Having considered the case, the Board acceded to his request and dealt with his appeal on paper.

9.Having considered the applicant’s evidence, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

(1)  There is no evidence to show that the creditors intended to harm or kill him.[59]

(2)  The dispute was between the applicant and his creditors, without any involvement of the government.[63]

(3)  The risk of being harmed or killed is very low, taking into account that he had only sustained minor head injury and he had recovered after medical treatment.[65]

(4)  His risks may be alleviated or neutralized by internal relocation, which is not very harsh for him.[71]-[76]

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

10.The applicant has filed Form 86 dated 15 May 2023 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant has raised the reasons below.

(1)  The Board’s Decision is wrong because it did not dealt with the right to life.

(2)  The Board had placed too much reliance on country of origin information without taking into account his experience.

(3)  The adjudicator was unfair in assessing the evidence and she asked questions which the applicant was unable to answer

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

DISCUSSION

13.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 (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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.Those grounds under paragraph 11 do not advance his case because they are his personal views without any evidence in support.

17.For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to Vietnam. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

18.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

19.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 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