Pham Van Hai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 1636/2020 [2025] HKCFI 4466 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1636 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:
Observations for the Applicant: Introduction 1.By a Form 86 filed on 11 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 4 June 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 28 November 2019 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent and stated “nil” in the section of interested party. 2.I amended the Form 86 on my own motion to name the DOI as a putative interested party. 3.The Applicant did not request for a hearing and this application is to be dealt with on paper. Background 4.The Applicant is a national of Vietnam. He seeks non-refoulement protection on the basis that he would be killed by his creditors to whom he was unable to repay a loan, if he was returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein. Discussion 5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676). 6.In his affirmation filed in support of this applicant, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision. 7.Looking at the TCAB Decision, the TCAB allowed the Applicant’s appeal to it despite it being out of time [12-35]. 8.The TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it, including the Applicant’s testimony at the hearing before it [8-9, 53-78]. After thoroughly analysing the same, the TCAB came to the finding that the Applicant’s allegations were not made out [79-89]. 9.The TCAB bore in mind the correct principles in respect of each of the four applicable grounds under the USM [36-52] and concluded that none was made out on the Applicant’s case [90-93]. 10.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. Conclusion 11.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application. Dated the 2nd day of October 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 | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment