Seo Wan Shik v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 816/2022 [2026] HKCFI 5379 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 816 of 2022 BETWEEN
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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 23 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 June 2016 and 26 June 2017 refusing his application for non-refoulement protection. 2.The Applicant had requested an oral hearing. A hearing on 19 August 2026 was scheduled and notice of hearing was sent to him by post on 30 July 2026 to his address as notified by him on 27 July 2026. The notice has not been returned in the course of mail. There is nothing to suggest that he had not received the notice of hearing. Attempts had been made on the afternoon of 18 August 2026 to contact him by telephone through the telephone number he provided, but the calls were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice. He did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing. 3.The Applicant is a South Korean national, now aged 63. He last arrived in Hong Kong on 10 December 2009 and overstayed since 11 March 2010. He surrendered to the Immigration Department on 28 August 2015 and he lodged a claim for non-refoulement protection by written signification on 12 October 2015. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice of Decision dated 22 June 2016 and 26 June 2017. His appeal against the Director’s decisions was dismissed by the Board on 9 March 2018. That decision was quashed by the Court of First Instance on the Applicant’s application for judicial review. The Applicant’s appeal was then heard and dismissed by the Decision of a differently constituted Board. He now applies for leave to apply for judicial review of that Decision. The Applicant’s case 4.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. He claims that he could not return to South Korea because of the threat from the South Korean government which accused him of being a spy of North Korea and the threat of harm from a loan shark. 5.The gist of the Applicant’s case is as follows. He participated in anti-government activities while studying in the university. He was arrested, detained and ill-treated by the government for five months. He was forced to serve in the military for about five years from 1983 to 1988. He was promoted to the rank of sergeant. He claimed that his name was included in the ‘activist list’ in accordance with the National Security Law (“NSL”). His travel outside South Korea was subject to certain restrictions, but all restrictions had been removed since February 2009. He worked in the business sector and had experience with health food, forex and commodity futures trading. 6.In 2009, he came to know Wong who used to do business in Mainland China and North Korea in around 2008. Later, Wong introduced him to Kim, who claimed to be a South Korean national who had resided in China since childhood. To his knowledge, Kim holds a passport issued by the People’s Republic of China (the “PRC”). They planned to establish a natural health food factory in Mainland China. In furtherance of their plan, the Applicant borrowed 3 billion South Korean Won from what he called a ‘loan shark’ by distant call. The loan shark was introduced to him by his good friend and employee, Moon. Moon signed the loan agreement with the loan shark on behalf of the Applicant and the loan shark transferred 3 billion won into Moon’s personal bank account. The Applicant instructed Moon to transfer 120 million won into Kim’s account to open a bank account and incorporate a new company in Beijing. Two weeks later, he also instructed Moon to transfer the balance of 2.88 billion won into Kim’s account. Thereafter, he lost contact with Moon. He thought he had been cheated 120 million won by Kim and 2.88 billion won by Moon. He reported the case to both the PRC police and South Korean police. Neither of them could give him any assistance. 7.He could only repay 300 million won to the loan shark. The loan shark and his men visited the Applicant’s home in South Korea to collect payment. They harassed his wife in her social life and harassed his daughter in the university. They never inflicted any harm on them. The Applicant’s wife reported the harassment to the police, but the police could do nothing other than increasing the frequency of police patrols in her home area. The Applicant’s family moved to another area for two to three years to avoid the loan shark, but the loan shark was able to locate them. Thus, the Applicant agreed to meet the loan shark in Hong Kong. 8.The Applicant met with the loan shark in Hong Kong in February 2015. The loan shark did not harm him but warned that he would not leave the Applicant and his family members alone if he returns to South Korea without money. The loan shark threatened to sell his organs in Mainland China to settle the loan. 9.At the hearing, the Applicant recounted an occasion when he met with the loan shark in a coffee shop in Tsim Sha Tsui. At the beginning of his testimony, he said the loan shark and his men only exerted pressure on him to repay without any physical violence. Later, he said they punched him a few times in the coffee shop and then locked him up in a hotel room for two days. They provided food for him, but occasionally slapped his face. 10.The Applicant also recalled one morning in September 2009 he received a phone call in Hong Kong from South Korea. The caller claimed he was working in the Security Bureau in South Korea. The caller informed him that he was involved in illegal money transfer to North Korea via a Chinese trading company and that he was suspected as being a spy for North Korea. The caller said that Kim came from North Korea. The Applicant also claimed that some people exhibiting civil servant identity card visited his family every five months and left a message that he should return to South Korea as soon as possible. The finding of the Board 11.The Applicant testified before the Board. The Board identified some inconsistencies and doubts in his evidence. Its conclusion on the Applicant’s credibility at paragraph 82 of its Decision is that “on the totality of evidence, [the Applicant’s] intention to seek protection in Hong Kong is suspicious.” Despite that conclusion, the Board assessed the Applicant’s claim on the basis of the case as he asserted. 12.In respect of Persecution Risk ground, the Board found on the basis of his case that his dispute with the loan shark is a personal monetary dispute while his dispute with the South Korean government is whether he was a spy of North Korea. Whatever ill-treatment arising from these disputes would not be on account of any of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Convention reasons”). 13.The Board researched extensively into country of origin information (“COI”) about problems relating to money lending in South Korea. It accepted that household debt is a real and acute problem in South Korea, but the government has been taking ongoing steps to reform the police force, combat corruption, combat loan-sharking or illegal predatory lending, and that the authorities are planning to launch a fresh set of measures to crack down on unregistered private lenders. The Board was satisfied that reasonable state protection would be available to the Applicant against the loan shark on his return to South Korea and there is no ground based on well-founded fear for refusing it. 14.It also researched extensively into COI about spying and enforcement of the NSL in South Korea. The Board found human rights situations have improved significantly in South Korea. Nowadays, human rights groups generally operated without government restrictions. Prosecutions under NSL have significantly decreased since 2015 from 40 cases a year to 3 cases for the first half of 2020. The COI indicates that South Korea has an independent judiciary, an accused has unrestricted access to lawyer and is entitled to a fair and public trial. It is not the Applicant’s case that he was in breach of the NSL. On his evidence, the government took no further action against him after the unknown call in 2009. That was 13 years by the time of hearing before the Board. Though the Board did not expressly find that for that reason his risk of being prosecuted or convicted for an offence under the NSL is low, that must be what the Board had in mind. The absence of such an express finding is not fatal because the Board had found any ill-treatment suffered by the Applicant would not be on account of a Convention reason. Hence, the Applicant’s claim under Persecution Risk ground failed. 15.The Applicant claims under BOR 2 Risk ground that he will be subject to death sentence if refouled to South Korea because he was suspected of being a spy of North Korea. It is not his case that he was indeed a spy nor is there any evidence to prove that he is. There was no follow up action since the unknown caller’s call in 2009. The Applicant has also produced no documentary evidence to prove that he is being prosecuted under the NSL or that prosecution is imminent. The Board found, even if the Applicant is being prosecuted, for the above reasons and the safeguards referred to in the COI, he would be entitled to a fair and public trial. It therefore found the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights to life under BOR 2 would be violated on his return to South Korea. 16.In respect of BOR 3 Risk ground, the Board found the injuries inflicted on the Applicant by the loan shark and his men did not attain a minimum level of severity. The Applicant has also submitted no medical evidence to substantiate his claim on mental injury. The Board found on the basis of the COI that adequate state protection would be available to the Applicant on his return to South Korea. Hence, it found the Applicant had failed to prove that he would face any genuine and substantial risk of being subjected to ill-treatment which would attain the minimum level of severity, if he is refouled to South Korea. 17.In respect of Torture Risk ground, the Board found the injuries inflicted on the Applicant by the loan shark and his men “failed to attain a minimum level of severity”. It found there was no evidence that the unknown caller or the loan shark were authorised by the government or the political party or could represent the government or the political party to hurt people. The Board raised the issue of state acquiescence by referring to the refusal by the South Korean police to provide more help other than increasing the frequency of police patrols in his wife’s area. It then dismissed the issue of state acquiescence by reason of the Applicant’s or his wife’s failure to seek assistance from the higher authority. Hence, it found there is no foreseeable, real, personal and present risk of being tortured if the Applicant is refouled to South Korea. Legal principles applicable to judicial review 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[2]. Grounds for judicial review 19.The Applicant had not advanced any grounds of application in his Form 86 or supporting affirmation. In the absence of particularised grounds, the Court could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision. Conclusion 20.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. 21.The Board found the Applicant’s intention to seek protection in Hong Kong suspicious. It identified a number of inconsistencies and doubts in the Applicant’s evidence, but stopped short of making any specific finding as to what is credible and what is not. The ambiguity is undesirable but not fatal because the Board assessed his claim on the basis of the case as the Applicant asserted and some further fact it found on the basis of the Applicant’s evidence and the COI. It found even if the alleged ill-treatment had been inflicted on the Applicant, it did not attain the minimum level of severity; that the injuries he suffered arose out of a personal dispute in which no government officials or state agents were involved and that the unknown caller and the loan shark are not state actors. It was not persuaded, even to the low standard required that the Applicant would be at risk of any threat of harm from the loan shark and the South Korean government. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 22.Except for its finding under Torture Risk ground, this Court has no great concern about the Board’s finding. In paragraph 133 of its Decision, the Board correctly referred to section 37U of the Immigration Ordinance, but equated the requirement of proof of “severe pain or suffering” under the section with “minimum level of severity”. It is arguable that the Board applied the wrong test in its funding under Torture Risk ground. On the evidence, the Applicant only suffered a few punches in a coffee shop when he met the loan shark and some occasional slaps on the face during his two days’ detention in a hotel. Ill-treatment of such description usually could not attain a minimum level of severity and could not generate severe pain of suffering; but it could under special circumstances. Whether he suffered or would suffer severe pain is a finding of fact solely for the Board which this Court could not make in its place. Applying the wrong test is an error of law. 23.The error could have no consequence if the perpetrator is a non-state actor and the ill-treatment was not inflicted with acquiescence of the state. The Board found at paragraph 139 of its Decision after quoting the law on state acquiescence that there was no evidence that the unknown caller and the loan shark were authorised by the South Korean government, political party or could represent the government or the political party to hurt people; and at paragraph 140 that there is no report or evidence that the South Korean government would fail to discharge its duty or tolerate any unlawful and allusive behaviour committed by an individual, any government official including the police, member of any political party as a systemic practice. This Court takes that to mean the Board found the unknown caller and the loan shark were non-state actors when inflicting ill-treatment on the Applicant and that there was no evidence of state acquiescence in their unlawful conduct. 24.This Court has no problem with the Board’s finding in respect of the loan shark but finds it difficult to accept its finding in respect of the unknown caller who according to the Applicant called him from South Korea, claiming to be working for the Security Bureau in South Korea and accusing him of being a spy of North Korea. How could it be said that there is no evidence that the caller is a state actor? This finding is clearly an error of law and irrational. However, these errors are of no consequence as there is no evidence that the unknown caller in South Korea talking to him in Hong Kong over the phone had inflicted any ill-treatment on the Applicant. Though in the eventual analysis, this Court finds there are some errors of law and irrational finding in the Board’s Decision about the Applicant’s claim under Torture Risk ground, these errors have no impact on the Decision. There is no reason for this Court to intervene by way of judicial review. 25.Thus, subject to the above observations on the Board’s finding under Torture Claim Risk ground which are of no consequence to its Decision, all the other findings of the Board are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. On the evidence, it was open to the Board to make those finding of fact. The Court could detect no other error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success. 26.For the above reasons, the Applicant’s leave application is refused. Dated the 24th 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
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