LE VAN MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 308/2022

[2026] HKCFI 2395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 308 of 2022

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 the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 6 May 2022, the Applicant seeks 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 25 April 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 16 March 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have considered the merits of the Leave Application based on the materials available before me.[2]

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[3]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. Apart from contending that the Board’s Decision and the Director’s Decision are unsafe and/or wrong, the Applicant has failed to identify any valid or effective public law grounds.[4]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[5]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of Immigration).[6]

8.  The Board was acutely aware of the Applicant’s claim that he would be harmed or killed by a loan shark i.e. Tran, if he were returned to Vietnam. The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found his case and evidence to be wholly unreliable. The Board rejected the factual basis of the Applicant’s claim entirely including his case of borrowing money from Tran to operate a pig farm, and of subsequent threats and harm from Tran and his men for non-payment. Given such finding of fact, the Board was entitled to find there was no real risk of harm and/or genuine risk of ill-treatment and torture.

9.  Second, it follows that the Board was quite simply entitled to come to the conclusions it did. There is nothing to indicate the Board had failed to take into account any relevant matters.

10.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

11.  Accordingly, I dismiss the Leave 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