DO TRUNG HOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1064/2021

[2026] HKCFI 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1064 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as putative respondent, its decision dated 2 July 2021 as the decision sought to be reviewed and the Director of Immigration as putative interested party;

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

Observations for the Applicant:

1.  By a Form 86 filed on 27 July 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) and the Immigration Department (“ImmD”).  However, the Applicant has not set out the date of the decision(s) sought to be reviewed in the Form 86 or exhibited a copy of any decision to the supporting affirmation.

2.  The Court’s staff later obtained from the Secretariat of the TCAB and ImmD copies of decisions bearing the Applicant’s name and reference numbers.  It seems the Director of Immigration (“DI”) made a tier-1 decision on the Applicant’s non-refoulement claim on 1 February 2021, and the TCAB (the relevant member also sitting as an adjudicator of the Non‑refoulement Claims Petition Office (“NRCPO”)) made a tier-2 decision on 2 July 2021.  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the decision challenged and the parties of these proceedings.  

3.  The Applicant does not require an oral hearing; I dispose of this application by consideration of documents only.

4.  The Applicant is a Vietnamese national.  His non-refoulement claim was based on an alleged risk of being harmed or killed by a creditor.  After an oral hearing, the TCAB/NRCPO came to the finding that the Applicant was not subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Vietnam. In coming to this finding, the TCAB/NRCPO did not find the Applicant’s assertions incredible.  Instead, it was assessed that, based on the Applicant’s own evidence, the risks alleged were not substantiated, did not attain the level of severity required under the Bill of Rights grounds and did not fit into the relevant criteria under torture and persecution risks. Reasonable State protection and internal relocation alternative were also found to be available.

5.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

6.  I have reviewed the TCAB/NRCPO Decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus dismissed.

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