BUI VAN THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 390/2020

[2025] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 390 of 2020

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 oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the court’s own motion.

2.   The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 March 2020, 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 2 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 15 June 2018 (“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/2020/HCAL000390_2020_files/the_Board's_Decision.pdf

2.  In the applicant’s Form 86, the applicant did not name any interested party.  As the Director should have been the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  Despite the fact that both the Director and the Board had rendered their respective Decisions in the Chinese language, this Form Call-1 will be written in English, as the Form 86 was prepared in English. 

4.  The basis of the applicant’s claim is that he would be harmed or killed by the female creditor and her henchmen for an outstanding 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.

5.  At the applicant’s request for a hearing of the Leave Application, the court scheduled a hearing on 15 May 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

6.  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.

7.  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.    

8.  In his Form 86 and supporting affirmation, the applicant did not provide any grounds in support of the intended challenge.

9.  At the hearing, this court reminded the applicant that he has not provided any grounds in the papers that he filed. This court also asked him if he wished to submit his grounds in support of the Leave Application.  The applicant only stated that he was still facing the same problem in Vietnam, and that he wished to continue to remain in Hong Kong.  He hoped that this court would help him to “prolong” his time in Hong Kong.

10.  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]

11.  In the present case, the Board found that the applicant’s evidence was not credible due to the fundamental inconsistencies between his oral testimony at the Board hearing and his prior evidence before the Director.  The Board drew his attention to these inconsistencies but he was unable to provide a satisfactory explanation.  In any event, the Board also found that he had only suffered minor injuries.  The Board therefore concluded that there was no real risk of harm.  The Board also found that reasonable state protection would be available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant did not provide any grounds either in his paper or at the hearing in support of the Leave Application.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

13.  The Form 86 is amended on the court’s own motion.

14.  The Leave Application be 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