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HCAL 1710/2025
[2025] HKCFI 4436
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1710 of 2025
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BETWEEN
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Le Van Duc |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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. There shall be an extension of time granted to the applicant to file the Form 86 out of time.
2. The Form 86 be amended on the court’s own motion.
3. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
4. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 31 July 2025, 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 29 December 2023 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 25 July 2023 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001710_2025_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant named the Director and the Adjudicator of the Board 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 on the court’s own motion.
3. The basis of the applicant’s claim was that he would be harmed or killed by the loan shark with triad background for an unpaid loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
4. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 September 2025. Since the applicant was in the custody of Tai Tam Gap Correctional Institution, a body order was issued to have the applicant brought to the court to attend the hearing.
Discussion
5. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 contained no grounds. In a letter attached to his supporting affirmation, the applicant gave his explanation for the delay for the filing of the Leave Application; and stated his grounds for the Leave Application. The grounds he advanced are very difficult to follow. He largely repeated the findings of the Board Decision. Broadly, the applicant seems to be state that after the Board had accepted the truthfulness of the applicant’s account, it was unreasonable for the Board to have rejected the applicant’s claims of risks.
7. At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant submitted to the court some photos and a letter from his mother dated 15 August 2025; and stated that these new document would prove that the loan shark and the gangsters in Vietnam had gone to his home to continue with the threats. The court explained to the applicant that it was not in a position to assess any new evidence afresh, and told him that he should instead focus on elaborating the grounds of his intended challenge to the Board’s Decision. The applicant then asked the court to give him a chance to stay in Hong Kong; and stated that if he were refouled; the gangsters would kill him.
8. As the Courts have repeatedly stated, 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.[3] In the present case, the Board accepted the truthfulness of the applicant’s evidence. However, the Board found that the loan shark did not intend to cause any serious harm to the applicant; and that the applicant did not provide further information about the alleged extensive connection he had in Vietnam. It concluded that there was no evidence of real risk of harm. The Board also did not find any evidence that the applicant would not be able to obtain the necessary assistance had he sought help from other government organizations in Vietnam. The Board further found that internal relocation would be reasonably viable.
9. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that it is at least arguable that the Board’s Decision is unreasonable, irrational and tainted with procedural unfairness in respect of the following matters.
Failure to properly investigate the past ill-treatment
10. The Board’s conclusion of the lack of risk of harm was based on its finding that the loan shark or his subordinates had not carried out any physical attacks on the applicant after the Second Attack in June 2021 (Board’s Decision [49]). The Board however seems to have overlooked the applicant’s evidence that after the second attack the applicant had in fact gone to Ninh Thuan to stay with a friend for 1.5 years. Further, in February 2023, there were 5 to 6 males came to look for the applicant at the friend’s home where he was sheltering. When the applicant was not found at the friend’s home, they vandalized the home and slapped at the friend’s wife (Board’s Decision [21]). This incident, which the Board accepted, would seem to suggest that those 5 to 6 males were likely to have been connected with the loan shark. This evidence would suggest that the loan shark and his men not only had wanted to continue to harm the applicant, their influences were beyond the applicant’s home as they would find the applicant at another area.
11. More importantly, the Board seems to have brushed aside the serious injury the loan shark and his men inflicted on the applicant in the Second Attack. In that incident, the applicant sustained a knife cut-wound on the neck required 13 stiches. The applicant stated that the scar was still visible and was prepared to undergo medical examination. The Board however appeared to have properly failed to take this particular serious injury into account when assessing the level of injury and the relevant risk of harm.
12. Since an appeal before the Board is a consideration of the applicant’s claim de novo[4], high standards of fairness require the Board to adopt a duty of joint endeavour[5] to properly investigate the applicant’s past torture or ill-treatment.
13. The duty to investigate encompasses a consideration of medical evidence, and absent of which, the exercise of the Board’s power to require the applicant to undergo a medical examination of the applicant’s scar under s.37ZC of the Immigration Ordinance [6]: LB v TCAB[7] .
14. Once it is apparent to a Board that a claimant has a scar resulted from the Second Attack, the Board was duty-bound to find out how the scar had been caused: RR (Challenging Evidence) Sri Lanka[8]. Thus, the Board has failed to apply the high standards of fairness in properly investigating the scar. It seems to have brushed aside this potentially important corroborating evidence relevant to the level of severity of pain and suffering.
15. It is presently unclear whether the scar, if properly investigated and considered, could have made a difference to the applicant’s case and the Board’s assessment of the level of severity of the past ill-treatment. However, a failure to properly investigate and consider medical evidence such as the scar in the present case may constitute reviewable error LB v TCAB (supra.); G v TCAB[9] and YS v TCAB[10].
Failing to draw attention to the applicant matters that required clarification
16. A high standard of fairness requires the Board to adopt an active role by drawing attention to the applicant “matters that needed clarification or elaboration so that they can be addressed by” him[11]. In the present case, the Board’s conclusion as the various risks of harm seems to have been based on its finding that the applicant adduced no evidence in showing the loan shark’s extensive connection the applicant had claimed (Board’s Decision [55]). However, this finding appears to be contradicting the Board’s acceptance of the applicant’s evidence (which included his evidence that the loan shark had triad background and extensive connection in Vietnam, and that he was very powerful: Board’s Decision [9] and [16]). It was also arrived at unfairly as the board had failed to seek clarification from the applicant. Had the Board come to the view that there was insufficient evidence; the Board was obliged to actively inform the applicant of its concern, and to give him a chance to address this matter.
17. Therefore, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.
Inadequate evaluation of the COI on state protection and internal relocation
18. It was the applicant’s evidence (which the Board accepted) that on both occasions when he reported the assault to the police at Minh Duc and Ninh Thuan of the two attacks and tried to seek assistance, he was not getting any help from the police due to the loan shark’s powerful triad influence. When the Board assessed the availability of state protection, the Board only referred to the COI in the Director’s Decision concerning corruption issue in Vietnam (Board’s Decision [57]). Apart from referring to the “effective control” over the national police (Board’s Decision [57] (a)) that concerned with the issue of police force, the rest of the COI the Board considered were not relevant at all. Pertinently the Board seems to have failed to have regard to the specific concern raised by the applicant that the police were fearful of the loan shark due to his triad background. The Board should had therefore referred to the specific COI concerning matters on how the state and its police force tackled with triads engaging in loan sharking activities. The Board had referred to no such material at all.
19. In the circumstances, the Board seems to have failed to demonstrate that it had properly and independently assessed the relevant COI. This, together with the Board’s assumption that the applicant “would not be able to obtain the necessary assistance had he sought help from other government organizations in Vietnam” in its finding of the availability of state protection arguably has rendered the Board’s Decision irrational and unreasonable, and is tainted with procedural unfairness: Asif Muhammad et al v Torture Claims Appeal Board [2025] HKCA 630 and A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471.
20. Regarding the viability of internal relocation, the Board’s conclusion that it was not unduly harsh for the applicant to relocate to other parts of Vietnam such as Ho Chi Minh and Ha Noi was principally premised on its acceptance of the fact that Vietnam was a big country with a large population. It seems however that the Board had not assessed the applicant’s evidence that the loan shark had extensive connections in Vietnam (Board’s Decision [30]).
21. In the present case, it seems that when the Board assessed internal relocation, it had failed to address its mind to the extent of the influence of the loan shark. It had also failed to take into consideration the personal circumstances specific to the applicant in making a holistic assessment when assessing whether it would be unduly harsh for the applicant to relocate elsewhere: Md Nazir Ahmed Sarkar v Torture Claims Appeal Board [2021] 5 HKC 237 at [66]-[69] and [73]; TK v Jenkins (supra.). This failure is arguably an error of law.
22. For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.
Whether to grant extension of time
23. Since the filing of the Leave Application was late for about 1.5 years, I need to consider if the court should exercise its discretion to extend time to the applicant. According to the explanation the applicant provided in his letter referred to in [6] above and the submissions at the hearing, the applicant stated that he was arrested and detained on 5 June 2024 for the offence of taking up employment illegally. The applicant had not received the Board’s Decision. It was only around June or July 2025 after he had written to the Board inquiring about the outcome of his appeal against the Director’s Decision that he was provided with a copy of the Board’s Decision. He said he was not educated and difficult to get assistance whilst in detention.
24. I accept the applicant’s explanation for the delay. Having regard to the conclusion on the prospects of success, I believe that justice requires the court to exercise its discretion in granting an extension of time to the applicant.
Conclusion
25. In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
26. Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Orders
27. There shall be an extension of time granted to the applicant to file the Form 86 out of time.
28. The Form 86 be amended on the court’s own motion.
29. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
30. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Dated the 9th day of October 2025
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(Alfred Chan)
for Registrar, High Court
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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 9/10/2025
Le Van Duc
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 9/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21989
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 583/23 (formerly as INCZ 5000513/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re Zunartyah [2018] HKCA 14 at [23].
[2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[3] 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.
[4] AM v Director of Immigration [2014] 1 HKC 416, [27]-[29].
[5] TK v Jenkins [2013]1 HKC 526 at [22].
[6] Relevantly, s. 37ZC (1) “If the physical or mental condition of the claimant is in dispute and is relevant to the consideration of a torture claim—
(a) an immigration officer or (on an appeal) the Appeal Board may require the claimant to undergo a medical examination to be conducted by a medical practitioner as arranged by an immigration officer”.
[7] [2024] 6 HKC 579.
[8] [2010] UKUT 000274 (IAC) at [147] and [154].
[9] [2019] HKCFI 201
[10] [2018] HKCFI 201
[11] ST v Betty Kwan [2014] 4 HKLRD 277 at [39]-[40].
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