LAI HONG THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 363/2024

[2026] HKCFI 4110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 363 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration as the putative interested party; and

2.   Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 22 February 2024 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 16 February 2024 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 27 January 2022 in refusing the applicant’s non-refoulement protection claim.  He named the Board and the Director as the proposed respondent but neither of them was listed as interested parties.

2.  I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

3.  The applicant did not request for a hearing and this application is to be dealt with on paper.

BACKGROUND

4.  The applicant is a national of Vietnam.  He seeks non-refoulement protection on the basis that if he is refouled, he would be hurt or even killed by his creditor from whom he had borrowed money to fund his fruit delivering business.  His personal background, the relevant facts and relevant procedural history have been set out in the Board’s Decision, which can be assessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and his affirmation filed in support of this application, the applicant has not specified any grounds for the review.   

7.  Having looked at the Board’s Decision, I find the Board has carefully taken into consideration of the applicant’s case and evidence [9-21], including the applicant’s testimony at the hearing before it [22-26].

8.  The Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [28-43], thoroughly analysed each, including the applicant’s credibility [66-77], before coming to the findings and conclusions that the harm and risk that the applicant was likely to face on his return to Vietnam was low [78].  The Board further found that the applicant has failed to establish any of the risks in respect of each of the applicable grounds [79-91].

9.  The Board further concluded that, although the issue did not arise, internal relocation would also have been available to the applicant [92-94].

10.  Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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