Case Document

100%Judiciary

HCAL 1785/2020

[2025] HKCFI 4271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1785 of 2020

BETWEEN
	Ngo Van Toan	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 June 2020 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 ask for 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.

4.Although the Board’s Decision is in Chinese, this Form CALL-1 is in English because the applicant filed his affirmation in English.

The applicant

5.The applicant is a national of Vietnam. He entered Hong Kong illegally on 28 March 2016. He was arrested by police and referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed 200 million VND for his fighting cocks and pigs farm, which failed and he was unable to repay his debt.

6.According to the applicant, the creditor had brought his subordinates to his house where they attacked him with fists, kicks and wooden planks. 　They also threatened to kill him and his family.

7.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001785_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

8.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”).

9.By way of Notice of Decision dated 26 May 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.　 On 30 April 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

11.Having considered the evidence, the Board found the facts below.

(1)  The applicant changed his evidence from time to time. [42]

(2)  His evidence was contradictory and unreasonable. [43]

(3)  An example is that he had no experience in fighting cocks farming. 　It would be unreasonable for the creditor to have lent him so much money. [43]

(4)  His evidence was unbelievable. [45]

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

12.The applicant has filed Form 86 dated 8 September 2020 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.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).

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

16.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.”

17.The applicant has raised no valid ground to challenge the Board’s findings.

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

Dated the 8^th day of October 2025

(Klein Tse)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 8/10/2025 Ngo Van Toan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/10/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7469/17/6/165/V1448 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 893/17 (formerly RBCZ 11789/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)