LUU VAN THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 432/2022

[2026] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 432 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;          or
	consideration of the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 6 June 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 25 May 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 13 September 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. Subsequent to the hearing, it has come to my attention that the Notice of Hearing issued by post was returned to the High Court with the indication “no such person”. However, it is the Applicant who has failed to discharge his duty to provide and update the Court an address to which correspondence or notice can come to his attention in a timely manner.[2] In any case, I have considered the merits of the Leave Application based on the materials available before me. [3]

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[4] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As the matter stands, the Applicant has failed to identify any valid or effective public law grounds.[5]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success. [6]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[7]

8.  The Board was acutely aware of the Applicant’s claim that if refouled, he would be at risk of being harmed or killed by 2 moneylenders in Vietnam. The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and rejected his case relating to the loan, the assaults or threats and ill-treatments by the moneylenders. The Board was therefore also entitled to find that (1) the alleged assault and threat did not in any event amount to a minimum level of severity such that he will face a genuine and substantial risk of harm or ill-treatment; (2) the moneylenders are not state actors and reasonable state protection is available; and (3) internal relocation is also viable.

9.  Second, there is simply nothing to indicate the Board had failed to take into account any relevant matters. The Board was quite simply entitled to come to the conclusions it did.

10.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

11.  Accordingly, I dismiss the Leave 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