Dang Duy Khanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 800/2024

[2025] HKCFI 4523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 800 of 2024

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 present 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 22 April 2024 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 15 September 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.

4.The Board’s Decision is in Chinese. However, the applicant submitted his affirmation in support of his application in English. I therefore prepare this Form CALL-1 in English for his convenience.

The applicant

5.The applicant is a national of Vietnam. He is an illegal immigrant, having been arrested by police on 29 August 2023. He admitted that he sneaked into Hong Kong from China on 26 August 2023. He was 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 because he was unable to repay his debt.

6.According to the applicant, the creditor and his people had gone to his house in Vietnam to demand repayment of his loan. He was unable to do so. They attacked him with knife, causing him injuries. They had also threatened to kill him. Therefore, he came to Hong Kong.

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/2024/HCAL000800_2024_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 15 November 2023 (“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 16 February 2024, the Board conducted an oral hearing for his appeal.

11.Having considered the evidence, the Board found that since the applicant had not suffered serious physical or mental torture, the possibility of future torture or harm if he returns to Vietnam will be very low. [81] The Board further found that state protection will be available to him [87]-[95], and internal relocation is viable. [96]-[103]

12.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

13.The applicant has filed Form 86 dated 20 May 2024 for leave to apply for judicial review of the Board’s Decision.

14.The applicant has raised the grounds below in support of his application.

(1)  The Board’s Decision has not considered his right to life.

(2)  The Board had relied too much on the country of origin information without considering his personal background and experience and had demanded him to respond to questions that he was not in a position to respond.

(3)  The Board’s Decision is irrational.

DISCUSSION

15.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).

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

17.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.”

18.The applicant’s grounds under paragraph 14 are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.[1]

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

DISPOSITION

20.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 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