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HCAL 1306/2020
[2025] HKCFI 4668
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1306 of 2020
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BETWEEN
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Dang Van Binh |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 Levy:
1. The Form 86 is amended on the court’s own motion.
2. The application for leave to apply for judicial review be dismissed.
Introduction
1. By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 26 June 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 17 June 2020 (“Board’s Decision”) dismissing the applicant's appeal against decision of the Director of Immigration (“Director”) dated 15 November 2019 (“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/HCAL001306_2020_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant did not name any interested party. As the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
3. The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by the loan shark with triad background for an unpaid 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.
4. As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.
Discussion
5. 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.
6. 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. The Form 86 and the supporting affirmation provided none at all.
7. 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] In the present case, the Board considered the applicant’s appeal on paper without holding a hearing. After having considered the applicant’s past experiences and encounters with the loan shark and his henchmen, the Board assessed the applicant’s past ill-treatment did not reach the requisite minimum requirement. In view of the fact that there was no evidence that any government officials had been involved, the Board concluded that the applicant would not face real risk of harm if refouled. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
8. 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. I am satisfied that the Board was entitled to conclude that the applicant would not face real risk of harm after having assessed that the past ill-treatment did not reach the requisite minimum requirement of severity. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. 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].
Order
9. The Form 86 be amended on the court’s own motion.
10. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 13th day of October 2025
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(Alfred Chan)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 13/10/2025
Dang Van Binh
Applicant’s ref. no:
Nil. |
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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 13/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 16517/19/11/75/V2388
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 936/19 (Formerly RBCZ 10689/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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