Vo Truong Han v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1462/2025

[2025] HKCFI 4050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1462 of 2025

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.

Observation for the Applicant:

THE APPLICATION                                                                        

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant did not request a hearing.

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 came to Hong Kong illegally before and was sent back to Vietnam. On 3 March 2024, police arrested him for remaining in Hong Kong illegally. He was convicted and sentenced to imprisonment for 20 months. On 2 September 2024, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the loan shark, from whom he had borrowed money for his seafood business, which failed and he was unable to repay his debt. Although the loan shark did not hurt him, he fled his country for fear that he may do so.

5.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001462_2025_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 Director’s Notice of Decision dated 27 January 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 March 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board found he was not a truthful witness [56]; and in material aspects of his case, his information/evidence was incredible and improbable. He could not adduce any objective evidence in support of his claim. [56] However, even if his evidence were accepted, the Board would still dismiss his appeal because the probability of him being harmed if he returns to Vietnam is low, and he may relocate to live in other places in Vietnam. [63]-[68]

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

10.The applicant has filed Form 86 dated 25 June 2025 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.There is no reason that this Court should interfere with the Board’s Decision.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.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 5^th day of September 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