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

HCAL 2593/2019

[2025] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2593 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 5 March 2025. I shall deal with his application on the papers.

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, aged 55, is a national of Vietnam. He came to Hong Kong in December 2000 as a visitor. He overstayed and was arrested for possession of forged document. He was sentenced to 10 months’ imprisonment and was repatriated after release. On 23 February 2015, he entered Hong Kong illegally and surrendered to the Immigration Department. On 22 March 2016, he lodged a non-refoulement claim by written signification for the reason that, if refouled, he will be harmed or killed by police of Vietnam because he had accused the police of having killed his friend in Vietnam.

5.  According to the applicant, the reasons for him to leave Vietnam for Hong Kong are that he had a friend in Vietnam, who was arrested by Vietnamese police. He died shortly. His wife accused the police of killing her husband. He protested to the police together with other friends. He and his friends were arrested. He was detained in police station where he was beaten by police officers with batons on his neck, mouth and back. He fell unconscious and was admitted in hospital for half of a month. He recovered and moved to live in other places in order to avoid the police. He had come to Hong Kong, but he was repatriated. Finally, he came to Hong Kong illegally again.

6.  Details of his claim are set out at paragraph 14 of the Notice of Decision dated 10 August 2016 (“the Director’s Decision”).

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 torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c. 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 the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that from his experience in Vietnam, the risk of harm by police if he returns to Vietnam is low; state protection will be available; and internal relocation is viable. [22]-[33]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 28 June 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that there was no basis for the applicant’s fear at all. [46] The Board had considered that the applicant had left Vietnam and entered Vietnam without any problem and that the applicant elected not to report the matter to police himself. The Board therefore found that the applicant had failed to establish that there were substantial grounds for believing that he would be subjected to the applicable risks if he returned to Vietnam. [54]& [58]

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

11.  The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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.  I note that the Director did not deal with BOR2 risk whereas the Board stated that the applicant appealed against the Director’s Decision on BOR 2 risk as well, apart from the other applicable risks. However, this will not affect the applicant’s present application because it will not be prejudicial to this application. The fact that he failed to establish BOR 3 risk shows that even if he had raised BOR 2 risk, his claim will still not be arguable[1].

17.  The applicant has raised no valid ground to challenge the Board’s findings.

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.