NGUYEN HIEU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 691/2025

[2025] HKCFI 3921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 691 of 2025

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  By an Order of this Court dated 17 July 2024, this Court granted leave to the applicant for judicial review of the Board’s Decision dated 17 May 2021 because the applicant was late in filing his notice of appeal and the Board refused to allow him to do so without considering the merits of his case.

2.  By consent of the Department of Justice, the matter was referred to the Board to be considered by another adjudicator.

3.  By Decision dated 13 March 2025 (“the Board’s Decision”), the Board reconsidered the applicant’s case and dismissed his appeal against the Decision of the Director 27 April 2017 (“the Director’s Decision”)

4.  By Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

5.  The applicant requested a hearing. However, he was absent at the hearing on 11 July 2025. I shall deal with his application on the papers.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

7.  The applicant is a citizen of Vietnam. He was arrested by police on 10 July 2015. On 31 July 2015 he lodged non-refoulement claim with the Immigration Department. He claimed that, if refouled, he would be harmed of killed by his creditor because he was unable to repay the debt he owed to the creditor.

The Director’s Decision

8.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

9.  The Director refused his claim for the reason that the risk of him being harmed or killed by the creditor if he returned to Vietnam was assessed to be low [10]; that state protection was available to him [12] and that internal relocation was an option open to him [18]. The applicant appealed to the Board.

The Board’s Decision

10.  The Board wrote a letter dated 11 February 2025 to the applicant requesting him to supply information about his late filing of the notice of appeal, giving him a deadline on 25 February 2025 to reply to its letter. In the letter, the Board advised him that if he failed to reply to its letter, it would proceed to consider his case and make a decision. The applicant did not reply, thereupon the Board assessed his appeal by referring to the merits of his case.

11.  Having considered the evidence, the Board came to the following conclusions.

(1)  The applicant’s evidence was incredible because his evidence was contradictory. [23]

(2)  Even if his evidence were accepted, the Board still dismissed his appeal as his risks would be alleviated or negated by internal relocation. [26]-[32] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000691_2025_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 18 March 2025 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has stated his grounds in Form 86, which referred to the Director’s handling of his application. Those grounds can be summarized as: being Wednesbury unreasonable; failing to consider state acquiescence; too much reliance on Country of Origin Information; and the Director was unfair. All these grounds are not supported by any evidence. The applicant did not raise any specific ground to challenge the Board’s Decision in his affirmation in support of his application.

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 its 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, CA. §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.

16.  Those grounds under paragraph 13 are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

17.  The applicant has failed to show that he has any reasonable prospect of success in his intended application for judicial review of the Board’s Decision.

DISPOSITION

18.  I dismiss the applicant’s application.

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