|
HCAL 1089/2025
[2025] HKCFI 5764
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 of 2025
| BETWEEN |
|
|
| |
Le Van Toi |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative 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 K.W. Lung:
Leave to apply for Judicial Review be refused.
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 2 May 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.
The applicant
4. The applicant is a national of Vietnam. He is an illegal immigrant, having entered Hong Kong as a visitor on 5 March 2024, but overstayed since 13 June 2024. He was arrested. 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 his creditor from whom he had borrowed 5 billion VND, and he was unable to repay his loan. His creditor and his subordinates had assaulted him with wooden bars. They also threatened to kill him.
5. 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/HCAL001089_2025_files/the_Board's_Decision.pdf.
The Director’s Decision
6. 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”).
7. By way of Notice of Decision dated 19 February 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 8 April 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) State protection is available if he returns to Vietnam. [47]
(2) The applicant failed to prove torture within the context of section 37U(1) of the Immigration Ordinance. [54]
(3) Internal relocation is viable. [63]-[68]
10. 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
11. The applicant has filed Form 86 dated 12 May 2025 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant has raised, insofar as the Board’s Decision is concerned, the reasons below to challenge the Board’s Decision.
(1) The Board’s Decision is wrong without taking into consideration of right to life.
(2) The Board had placed too much reliance on the country of origin information without taking into consideration of the applicant’s personal experience.
(3) The Board had unreasonably demanded him to respond to questions that he was not in a position to offer any response.
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. Those reasons under paragraph 12 are the applicant’s bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.[1]
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 8th day of December 2025
| |
(Allen LEE)
for Registrar, High Court |
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 8/12/2025
Le Van Toi
Applicant’s ref. no:
Nil.
|
|
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 8/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25751
Director of Immigration
Putative Interested Party’s ref. no.: RBCL 2793/24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
|