Case Details

Citation

PHAM VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE, HCAL 1488/2025

Case Number

HCAL 1488/2025

Court

Court of First Instance

(CFI)

Decision Date

15 May 2026

Parties

Applicant(s):

Pham Van Binh

Respondent(s):

Torture Claims Appeal Board/ Non-refoulement Claims Petition Office, Non-refoulement Claims Petition Office

Judges

K.W. Lung

PHAM VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

[2026] HKCFI 2557

Court of First Instance15 May 2026

Judges:K.W. Lung

HCAL1488/2025 PHAM VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1488/2025

[2026] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1488 of 2025

BETWEEN
	Pham Van Binh	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 7 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2. The applicant did not ask for a hearing.

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

The applicant

4. The applicant is a national of Vietnam. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his creditor as he was unable to repay his debt.

5. Details of his claim are set out in the Board’s Decision. See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001488_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

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

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

7. By way of Notice of Decision dated 24 January 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 26 March 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9. Having considered the evidence, the Board made the findings below.

(1)   The Board accepted the alleged facts that he owed debt to his creditor.

(2)   However, state protection will be available to him if he returns to Vietnam. [118]

(3)   Internal relocation is viable. [120]

10. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 27 June 2025 for leave to apply for judicial review of the Board’s Decision.

12. In support of his application, the applicant has raised the grounds below to challenge the Board’s Decision.

(1)   The Board’s Decision is wrong as it had not considered his right to life.

(2)   The Board had relied too much on the country of origin information without considering his personal background and experience.

(3)   The Board had unreasonably required him to answer questions that he was not in a position to offer any response.

DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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.”

16. The applicant’s reasons under paragraph 12 are bare assertions without any evidence in support. They are not valid to challenge the Board’s findings.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 15^th day of May 2026

(Klein Tse)
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:
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)).		Sent to the Applicant on 15/5/2026 Pham Van Binh Applicant’s ref. no: Nil.		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 15/5/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 25587 Director of Immigration Putative Interested Party’s ref. no.: INVN-0000233-24 (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

PHAM VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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