Pham Hoang Lam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3433/2019

[2025] HKCFI 4908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3433 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Levy:

1.   The Form 86 is amended on the court’s own motion.

2.   The application for leave to apply for judicial review be dismissed.

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 20 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 31 October 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 20 March 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003433_2019_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant did not name any interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly.

3.The applicant’s claim then was that he would be harmed or would receive unfair treatment from Vietnam authorities because of his background and race. The Board’s reasoning and findings were set out in detail in the Board’s Decisions and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 

4.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 August 2025.  A notice of hearing with a reminder[1] of the consequence of absence dated 9 July 2025 was sent to the applicant’s last known address by ordinary post.  The applicant was absent from the hearing.  Before the hearing, phone calls were made to the applicant’s given telephone number but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation did not provide any grounds.

7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board found that the applicant’s account unbelievable, and did not accept his claims. The Board also found that the past ill-treatment according to the applicant’s account did not reach the requisite minimum level of suffering. The Board concluded that there was no real risk of harm. The Board also found that the applicant was unable to establish that state protection was not available as he never made any attempt to seek for help. It was also satisfied that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors. 

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  The applicant provided no grounds at all to support the Leave Application.    The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

9.The Form 86 be amended on the court’s own motion.

10.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 27^th 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