DO VAN NGOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3711/2019

[2025] HKCFI 1055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3711 OF 2019

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

Following:

	consideration of documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 10 December 2019, the Applicant applies for 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 20 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 17 July 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  I have amended Form 86 on my own motion, correctly naming only the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.  The Applicant’s personal background, his case and claim, the facts alleged by him to show that he would be harmed or killed by his creditors in Vietnam and the immigration and procedural history, etc. have been comprehensively set out in the Board’s Decision. It is not necessary for me to reiterate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and leave should be refused.

5.  The Board was not satisfied that the Applicant had shown sufficient factual basis to show that there were Persecution Risk, BOR 2 Risk, BOR 3 Risk and Torture Risk (see §§31-35 of the Board’s Decision). The Board firmly rejected the Applicant’s claim, as he had only made “bare assertions” without any objective proof. The Board dismissed the facts alleged by the Applicant as “implausible”. The Board also concluded that the Applicant was “dishonest and unreliable”, and was not “a genuine claimant”. Furthermore, the Board examined the COI materials and assessed the risk of harm, state protection and viability of internal relocation.

6.  I have considered the Board’s Decision with rigorous examination and anxious scrutiny as required by law. It is well-established that the merits of a non-refoulement claim are matters for the primary decision-maker. The Court should not usurp the role of the Board in assessing the evidence of the facts in question (see 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, etc.) In the present case, the Applicant has not shown that the Board committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision. In fact, the Applicant has been unable to state his grounds for judicial review in Form 86 (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142). It is insufficient for the Applicant to simply express ‘disagreement’ with the Board, or reiterate his ‘fear’. The Applicant has merely exhibited a copy of the Board’s Decision and has not presented any substantive evidence which would reveal any basis or ground for the Court to intervene by way of judicial review (see Re Zunariyah [2018] HKCA 14 at §22).

Conclusion

7.  For these reasons, I make an order that Form 86 be amended as described above and 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