Pham Hiep v. Torture Claims Appeal Board
Read the full judgment text of HCAL 976/2021 on BabelCite. This High Court CFI judgment was delivered on 22 April 2026.
1. By way of Form 86 dated and filed on 12 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:
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HCAL 976/2021 [2026] HKCFI 2276 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 976 OF 2021
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 12 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:
2.The Torture Claims Appeal Board (“the Board”) made two decisions dated 4 May 2017 (“the Board’s 2017 Decision”) and 3 July 2018 (“the Board’s 2018 Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 April 2016 (“the Director’s 2016 Decision”) and his petition against the Director’s further decision dated 9 August 2017 (“the Director’s 2017 Decision”) respectively. At the oral hearing before this court on 2 April 2026, the applicant confirmed that both the Board’s 2017 Decision and the Board’s 2018 Decision should be the subject matters of the Leave Application. Both the Board’s 2017 Decision and the Board’s 2018 Decision can be viewed in the following hyperlinks:- 3.In the Board’s 2017 Decision, the Board found that the applicant’s application for non-refoulement protection failed on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s 2016 Decision, which rejected the applicant’s non-refoulement claim on the said three grounds, and confirmed the same. 4.In the Board’s 2018 Decision, the Board found that the applicant’s application for non-refoulement protection failed on the ground of BOR 2 Risk[4] under the USM. Hence, the Board dismissed the applicant’s petition against the Director’s 2017 Decision, which rejected the applicant’s non-refoulement claim on the said ground, and confirmed the same. Amendments 5.In Form 86, the applicant named ‘TORTURE CLAiM APPEAL BOARD IMMiGRATiON” as the putative respondent and did not name any putative interested party. 6.In fact, as the subject matters of the Leave Application are the Board’s 2017 Decision and the Board’s 2018 Decision, the Board should be named as the putative respondent and the Director should be named as the putative interested party. 7.As aforesaid, the applicant has confirmed that the decisions in respect of which relief is sought in the Leave Application should be the Board’s 2017 Decision and the Board’s 2018 Decision. 8.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decisions in respect of which relief is sought to “Torture Claims Appeal Board’s decisions dated 4 May 2017 and 3 July 2018 respectively”. Late application 9.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 decisions were made. 10.However, the applicant filed Form 86 on 12 July 2021, which was more than 4 years and 2 months after the Board’s 2017 Decision (made on 4 May 2017) and more than 3 years after the Board’s 2018 Decision (made on 3 July 2018). The applicant was hence late for more than 3 years and 11 months, and more than 2 years and 9 months in making the Leave Application in respect of the Board’s 2017 Decision and the Board’s 2018 Decision respectively, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 11.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
12.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court, the applicant first explained the delay by saying that he did not know anyone who could guide him to make an application and he did not have much legal knowledge. He then said that he met a person who was in the same circumstances as him later, and hence he made the application late. 13.The delay in the present Leave Application is very substantial, and the explanations given by the applicant are clearly not satisfactory. Ignorance of the law or the court’s procedures is generally not an excuse. More importantly, there is no merits of the intended judicial review at all as discussed below. 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. 14.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 15.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 two decisions aforementioned, which can be viewed in the hyperlinks above. 16.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor named Long and Long’s men as he could not repay a sum of loan borrowed from Long. Oral hearing 17.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 2 April 2026. 18.When this court asked the applicant for the grounds of his intended judicial review, the applicant only said that he still could not return to Vietnam and all he could do was to find all possible solutions to ask the court and the Hong Kong government for him to stay here. He urged the Hong Kong government to grant him an opportunity to stay here on humanitarian ground. Grounds for judicial review 19.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). 20.The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 12 July 2021, the applicant merely mentioned that he was applying for judicial review against the decisions of both the Board and the Director. 21.What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either. Discussion 22.First of all, the applicant’s danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. The applicant’s wish to stay in Hong Kong is not a valid ground for judicial review at all. 23.With regards to the applicant’s intention to challenge both the Director’s decisions and the Board’s decisions, only the Board’s decisions are reviewable by judicial process and not the Director’s decisions. The Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will only deal with the Leave Application in respect of the Board’s decisions. 24.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). 25.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize both the Board’s 2017 Decision and the Board’s 2018 Decision for any errors of law, procedural unfairness or irrationality. 26.This court notes that the Board did not hold an oral hearing in dealing with the applicant’s appeal and petitions. However, there was no absolute right to an oral hearing, and the Board had given full reasons in paragraphs 16 to 21 of the Board’s 2017 Decision and in paragraphs 9 to 14 of the Board’s 2018 Decision as to why it considered that the applicant’s appeal and petitions could be determined without an oral hearing. This court finds nothing wrong or unreasonable in the Board’s reasoning. 27.As can be seen from the Board’s 2017 Decision, the Board did not challenge the applicant’s credibility. The applicant’s claims were assessed as they were presented by the applicant when he was legally assisted in the first phase of assessment before the Director. 28.However, the Board found that the dispute between the applicant and his creditor was just a private monetary dispute arising from the applicant’s inability to repay a loan. The injuries that the applicant suffered from the only attack was not serious and did not attain a minimum level of severity. There was no evidence of state acquiescence in the alleged ill-treatment on the applicant. The applicant’s fear of his creditor was not for any Convention reasons. 29.Moreover, the Board found from country of origin information (“COI”) that despite setbacks, there were ongoing reforms on anti-corruption in Vietnam and the law of Vietnam would protect the applicant if the money lender intentionally harmed him. The Board found that reasonable state protection was available to the applicant. 30.Further, the Board found that the applicant, being a young male with work experience including running his own business, could relocate to other cities in Vietnam without undue hardship in order to avoid Long and his men. 31.In dealing with the applicant’s subsequent petition on the ground of BOR 2 Risk, the Board found that the applicant merely repeated his allegations that he could explain more and submit more evidence, but the applicant did not submit any more evidence with his Notice of Appeal/Petition. 32.As to the applicant’s BOR 2 Risk, the Board was not persuaded that the applicant would suffer severe pain or suffering, even death, at the hands of Long, if he was refouled to Vietnam (see paragraph 41 of the Board’s 2017 Decision). 33.Thus, the Board found that the applicant was not at real risk of being subjected to torture, CIDTP[5], persecution or arbitrary deprivation of life by Long due to his inability to repay his loan. 34.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decisions. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decisions. 35.Having rigorously examined the Board’s 2017 Decision and the Board’s 2018 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 both the Board’s 2017 Decision and the Board’s 2018 Decision. The Board’s two decisions do satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions. 36.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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 37.For reasons aforesaid, the Leave Application in respect of both the Board’s 2017 Decision and the Board’s 2018 Decision is dismissed for being made out of time and also for devoid of merits.
Dated the 22nd day of April 2026
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
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. [4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [5] Cruel, inhuman or degrading treatment or punishment
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Cases cited in this judgment