TRAN VAN NGOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

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 3 June 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.

4.  This Form CALL-1 is in English despite the Board’s Decision is in Chinese because the applicant submitted his affirmation in support of this application in English.

The applicant

5.  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 the creditor because he was unable to repay his loan.

6.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001300_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.  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”).

8.  By way of Notice of Decision dated 18 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 2 May 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

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

(1)   The creditor and his subordinates assaulted the applicant because they wanted to make him pay his debt, without any intention of killing him. [47]

(2)   State protection is available if he returns to Vietnam. [61]

(3)   Internal relocation is viable. [65]

11.  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

12.  The applicant has filed Form 86 dated 9 June 2025 for leave to apply for judicial review of the Board’s Decision.

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

(1)   The Board’s Decision is wrong as it had not considered BOR 2 risk.

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

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

(4)   The adjudicator should have allowed his appeal.

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 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).

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

16.  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.”

17.  The grounds under paragraph 13 are the applicant’s bare assertions or personal opinion without any evidence in support.  As such, they are invalid to challenge the Board’s Decision[1].

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

DISPOSITION

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