Lanh Van Thai v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2003/2020 on BabelCite. This High Court CFI judgment was delivered on 11 November 2025.
1. By way of Form 86 dated and filed on 6 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 May 2020. The Board’s Decision can be viewed in the following hyperlink:-
Cites 5 cases
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HCAL 2003/2020 [2025] HKCFI 5392 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2003 OF 2020
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 6 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 May 2020. The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant failed to establish his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 February 2020 (“the Director’s Decision”) and confirmed the same. Amendment 3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should only be the putative respondent and the Director should be the putative interested party. 4.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”. Late application 5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 6.Form 86 was filed on 6 October 2020, which was more than 4 months after the Board’s Decision (made on 11 May 2020). The applicant was hence late for more than one month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 7.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
8.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. 9.Although a delay of more than one month is not very substantial, there is no justification for the delay when no explanation was given. Moreover, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone. 10.However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the Board’s Decision. The applicant’s case 11.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 12.In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Vietnam, a Nguyen Cong Hiep (“Hiep”), from whom he borrowed a sum of 600 million Vietnamese Dong to pay the medical expenses for his mother, would harm or kill him since he could not repay the money. Oral hearing 13.The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 11 September 2025. 14.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 15.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 16.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 17.The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 6 October 2020. The applicant merely repeated in his affirmation the factual basis for his non-refoulment claim, which had already been considered but rejected by the Board. Discussion 18.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 19.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 20.In assessing the appeal by the applicant, the Board arranged an oral hearing on 20 April 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person. 21.As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found that the applicant’s dispute with Hiep was only a private loan dispute between them and the treatment he received did not fall within the meaning of torture under section 37U of the Immigration Ordinance. The acts that were inflicted upon the applicant were not for a Convention reason. The Board also found that the injuries the applicant suffered was not as serious as he claimed, since the applicant did not need to be hospitalized and was discharged on the same day. 22.Although the Board found country of origin information (“COI”) which suggested that corruption and inefficiency were common in the Vietnamese police force, the materials also revealed that the Vietnamese government had recently undergone reforms in order to combat corruption amongst police and to improve efficiency. 23.The applicant and his family had relocated to avoid Hiep. Evidence suggested that during the 9 months from mid-June 2018 to mid-March 2019 before his departure from Vietnam, the applicant who moved to Mong Cai to find employment there encountered no trouble from Hiep or his men at all. The Board found no evidence suggesting that Hiep was in any way related to the authority so that he could have the resources to locate the applicant had he stayed and lived in provinces or cities, such as Ho Chi Minh, Da Nang or Mong Cai, other than his own. The applicant, being a young adult who had 12 years of formal education and 7 years of work experience, should have no difficulty to live a normal life by internal relocation in order to avoid Hiep and/or his men. 24.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 26.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 27.For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 11th day of November 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
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Cases cited in this judgment