Ngo Van Tai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1048/2025

[2025] HKCFI 4740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1048 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 24 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.

4.This Form CALL-1 is in English though the Board’s Decision is in Chinese. This is because the applicant submitted his affirmation in English.

The applicant

5.The applicant is a national of Vietnam. He is an illegal immigrant, having entered Hong Kong illegally on 16 June 2024. He surrendered to the Immigration Department and lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the creditor because he was unable to repay his debt. The creditor and his subordinates had attacked him with fists and kicks.

6.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/HCAL001048_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.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”).

8.By way of Notice of Decision dated 15 January 2025 (“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

9.The applicant appealed the Director’s Decision to the Board. On 6 March 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

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

(1)  State protection will be available. [55]-[56]

(2)  The applicant failed to prove he will be subjected to BOR 3 risk. [65] & [74]

(3)  The creditor did not have intention of harming his family. [69]

(4)  There was no evidence that he was tortured and his chance of being tortured if he returns to Vietnam is low. [76]-[79]

(5)  There was no evidence to show that he will be subjected to BOR 2 risk. [81]

(6)  Internal relocation if he returns to Vietnam is viable. [82]-88]

11.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 6 May 2025 for leave to apply for judicial review of the Board’s Decision.

13.In support of his application, the applicant has raised the grounds below:

(1)  the Board’s Decision had not considered BOR 2 risk;

(2)  the Board did not give weight to state acquiescence;

(3)  the Board had place too much weight on the country of origin information, but failed to consider his personal background and experience;

(4)  the Board did not accept his explanation and unreasonably required him to respond to questions that he was not in a position to offer any response.

(5)  The Board ought to allow his appeal, but it did not do so.

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.Those grounds under paragraph 13 are his bare assertions or comments without any evidence in support and are not valid to challenge the Board’s Decision.[1]

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 30^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