Le Ba Cuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1106/2025

[2025] HKCFI 5521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1106 of 2025

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 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 2 May 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 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.

The applicant

4.The applicant is a national of Vietnam.  He is an illegal immigrant, having entered Hong Kong illegally by boat on 3 September 2024.  He was arrested.  He 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, from whom he had borrowed 600 million VND and he was unable to repay his loan.  The creditor had brought his people to demand repayment.  Upon hearing that he was unable to repay, they attacked him and threatened to kill him.

5.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/HCAL001106_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.By way of Notice of Decision dated 26 February 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 8 April 2025, the Board conducted an oral hearing for his appeal.  He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board made the findings below.

(1)   There was no evidence that he had suffered severe pain or suffering as defined under section 37U(1) of the Ordinance. [43]&[59]

(2)   State protection is available to him if he returns to Vietnam. [53]

(3)   There are some significant discrepancies in his evidence, which call into question of its veracity. [57]

(4)   BOR 2 risk is not engaged. [60]

(5)   His case falls short of the level of severity of pain or suffering for BOR 3 as laid down by the Court of Final Appeal. [66]

10.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

11.The applicant has filed Form 86 dated 13 May 2025 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised, insofar as the Board is concerned, the reasons below to challenge the Board’s Decision.

(1)   The Board’s Decision is wrong.

(2)   The adjudicator has place too much reliance on the country of origin information without taking into consideration of his personal background and experience.

(3)   The adjudicator was unfair in that he had demanded him to respond to questions that he was not in a position to offer response.

(4)   The adjudicator should have allowed his appeal.

DISCUSSION

13.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).

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

15.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.”

16.The applicant’s grounds under paragraph 12 are his bare assertions or opinions without any evidence in support.  They are not valid to challenge the Board’s Decision.[1]

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

DISPOSITION

18.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 19^th 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

Form CALL-1