Pham Van Tuan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 886/2023

[2026] HKCFI 5310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 886 of 2023

BETWEEN

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 19 May 2023 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.

4.The Board’s written decision was written in Chinese whereas this Form CALL-1 is written in English. This is because the applicant has submitted his statement of grounds in English.

The applicant 

5.The applicant is a national of Vietnam. He is an illegal immigrant. 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 his creditor because he was unable to repay the loan.

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/2023/HCAL000886_2023_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 25 October 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 2 November 2022, 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 did not dispute the alleged facts, but found that the state was not involved, and state protection will be available if he returns to Vietnam [57]; that internal relocation is viable [66]. The Board further found that his claim failed under all the applicable risks.

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 7 June 2023 for leave to apply for judicial review of the Board’s Decision.

13.The applicant attached a statement of grounds to Form 86, in which he said that the Board’s Decision is wrong and unreasonable without considering his right to life; that the adjudicator has place too much reliance on the country-of-origin information without considering his personal background and experience; that the Board was unfair by asking to answer questions that he was not in a position to offer any response.

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. There was no dispute on the alleged facts. The Board dismissed his appeal for the reasons that state protection and internal relocation are available to mitigate or neutralize his risks. He has raised no reasonable ground to challenge the Board’s finding. The grounds under paragraph 13 are bare allegations without any evidence in support. They are not valid to challenge the Board’s Decision.

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.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 23^rd day of September 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