PHAM VUONG HOANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1207 of 2022

[2025] HKCFI 4996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1207 of 2022

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION 

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 October 2022 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant appeared before the Court on 13 October 2025.

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 illegally and surrendered to the Immigration Department on 25 May 2021.  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 100 million VND for his farming business, which failed.  He was unable to repay the loan.  His creditor had scolded, insulted him and threatened to kill him if he did not repay his loan.  He fled his country for Hong Kong.

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/2022/HCAL001207_2022_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 26 January 2022 (“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 11 October 2022, 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)   His evidence relating to the facts in support of his claim was inconsistent and questionable.  The Board did not find his evidence credible and it attached no weight to it.  It therefore did not accept that he had borrowed money from the creditor or his creditor had threatened him. [75]

(2)   For the reasons above, the Board found that he had failed to establish that he will face any ill-treatment if he returns to Vietnam. [76]

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 4 November 2022 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant has, insofar as the Board is concerned, raised the reasons below to challenge the Board’s Decision.

(1)   The Board’s Decision is wrong as it had not taken into account BOR 2 risk.

(2)   The adjudicator was unreasonable to place too much reliance on the country of origin information without taking into account his personal background and experience and he required him to respond to questions that he was not in a position to offer any response.

(3)   The adjudicator should have allowed his appeal.

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.  Before me, the applicant said that he had told the Board his full story.  However, he can return to Vietnam if the Hong Kong government does not allow him to stay.

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.  It is obvious that the Board rejected the facts in support of the applicant’s claim.  As such, his claim has no factual basis in support.  The grounds under paragraph 12 are his bare assertion without any evidence in support.  They are not valid to challenge the Board’s Decision.

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.

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