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HCAL 2855/2019
[2025] HKCFI 2884
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2855 of 2019
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Hoang Manh Huy |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
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 Levy:
1. The Form 86 be amended on the court’s own motion.
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 27 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 May 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.
2. In his Form 86, the applicant named the Board as well as the Immigration Department as the proposed respondents and interested parties. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly.
3. At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 24 June 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.
4. Notwithstanding that both the Director’s Decision and the Board’s Decision are in Chinese, this Form Call-1 will be prepared in English as the applicant’s Form 86 and his supporting affirmation were both drafted in the English language.
Background
5. The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.
6. The applicant is a national of Vietnam. He was arrested by police in Hong Kong on 22 February 2019 and was referred to the Immigration Department the next day. He claimed that he departed Vietnam on 18 February 2019, and entered Hong Kong without permission on 21 February 2019. The applicant raised his current non-refoulement claim on 3 April 2019. In the Director’s Decision, the applicant’s claim was considered under all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The basis of the claim was that he would be harmed or killed by his creditor for an outstanding loan.
7. The applicant came to Hong Kong twice illegally. The first time was on 26 April 2017, but was repatriated on 24 July 2017. The second arrival was on 21 February 2019. According to the applicant, the reason for his fleeing Vietnam in 2017 was due to his fear of harm from his creditor for a loan that he borrowed in August 2016. Due to the non-payment of the loan, the creditor and his henchmen assaulted and threatened to kill the applicant on two separate occasions in February and March 2017. In the first occasion, the applicant was kicked and hit on his head with beer bottles. His head bled, and his body was bruised and swollen. He stayed in the hospital for several hours for the treatment of his injuries. For the second occasion, he was assaulted for about 10 to 15 minutes. However, no medical treatment was required.
8. After his repatriation back to Vietnam, the applicant participated in the rallies of a radical anti-government political organization in order to earn money. However, during a rally in November 2018, the public security officers arrested him. The applicant was detained for 20 days. During the period of detention, the applicant was assaulted. About 8 to 9 days after his release, about 8 people from his creditor as well as from the said anti-government organization came to the applicant’s home. They questioned the applicant if they had reported on them to the public security officers, and then started assaulting him. They threatened to kill him if he reported on them. Out of fear, the applicant decided to flee Vietnam for the second time.
9. In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds except torture risk. Hence, the applicant’s appeal to the Board against the Director’s Decision.
10. On 19 August 2019, the applicant attended a hearing before the Board, during which he gave oral testimony.
11. After having asked questions to clarify some aspects of the applicant’s evidence, the Board found that there were many material inconsistences between the evidence he gave at the hearing and the information he provided in his claim form and the record of interview with the Director. The Board found that the applicant was not a reliable or an honest witness. The Board found that his evidence was unbelievable, and thus rejected the applicant’s claims. The Board further found that in any event there was no real risk of harm because the applicant’s injuries were minor and did not meet the minimum level of severity. The Board also found that internal relocation would be viable. Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
12. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
13. The applicant provided no grounds in his Form 86. In his supporting affirmation, the applicant only stated that his life was in danger were he to be refouled.
14. At the hearing, this court reminded the applicant that he had advanced no grounds in the papers that he had filed, and asked him whether he had any grounds he wished to submit in support of the Leave Application. The applicant only stated that he would go home after he had repaid his debt.
15. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.
16. The Board’s findings summarized in [11] above are findings of fact, which the court in a judicial review will not interfere with.
17. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application whether on papers or at the hearing. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.
18. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Orders
19. The Form 86 be amended on the court’s own motion.
20. The Leave Application be dismissed.
Dated the 17th day of July 2025
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(Alfred Chan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 17/7/2025
Hoang Manh Huy
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15975/19/6/15/V2298
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 341/19 (Formerly RBCZ 10244/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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