BUI VAN KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 951/2021 [2026] HKCFI 1596 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 951 of 2021 BETWEEN Bui Van Kien Applicant Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent 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: consid e to apply for judicial review be dismissed. Introduction By a Notice of application for leave to apply for judicial review in the prescribed Form 86 filed on 6 July 2021, the applicant applied for leave to apply for judicial review ( Leave Application ). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office ( Board ) dated 24 June 2021 ( Board s Decision ) dismissing the applicant's appeal against the decisions of the Director of Immigration ( Director ) dated 28 September 2020 ( Director s Decision ) rejecting the applicant's non-refoulement claim on the applicable grounds . The Board s Decision can be viewed at the following hyperlinks: - HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000951_2021_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000951_2021_files/the_Board's_Decision.pdf In his Form 86, the applicant named the Board as the proposed interested party in addition to it having been correctly named as the proposed respondent. As the Director should have been the proper interested party, the Form 86 will be amended accordingly. The basis of the applicant s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor and his 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. Pursuant to the applicant s request for a hearing of the Leave Application, this court scheduled a hearing on 5 March 2026. A notice of hearing with a reminder of the consequence of absence dated 13 February 2026 was sent to the applicant s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court. Discussion The Leave Application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision. It is sufficient to state my observations after considering the Board s Decision and the applicant s materials adduced. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly , 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 no such grounds. 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. In the present case, the Board found that the applicant was not a credible and reliable witness. His claims were found to have been exaggerated with discrepancies and contradictions in respect of important aspects of his account. The Board declined to attach any credence regarding his claims. The Board concluded that the applicant would not face any real risk of harm if refouled as the past ill-treatment did not meet the minimum requisite level of severity. The Board also found that state protection and internal relocation were reasonably available. 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 provided no grounds at all. 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 . Orders The Form 86 be amended on the court s own motion. The applicant s application for leave to apply for judicial review be dismissed. Dated the 24th day of March 2026 ( Alfred CHAN ) : 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 24/3/2026 Bui Van Kien 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 24/3/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 17286/20/10/35/V2594 Director of Immigration Putative Interested Party s ref. no.: QA T/C 449/20 (formerly RBCZ 10385/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance ( torture risk ) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 ( HKBOR ), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government s Unified Screening Mechanism ( ) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court Re Zunartyah [2018] HKCA 14 at [23]. Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh o`o`o gd>Z gd>Z gd>Z gd>Z gd>Z gd>Z gd>Z ytm< [[Q[Q[Q[[Q[K h^Hr h^Hr h^Hr h^Hr h^Hr hy1= hy1= hy1= h^Hr gd^Hr gd^Hr gd^Hr ytm< h^Hr h^Hr h^Hr h^Hr h^Hr gd^Hr gd^Hr gd^Hr gd^Hr h^Hr h^Hr h^Hr h^Hr h^Hr h^Hr h^Hr h^Hr gd>Z gd>Z gd>Z zcN43 gd>Z gd>Z gd>Z gd>Z h%E[ gd Ju gd)K gd)K gd)K [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 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The applicant s application for leav e to apply for judicial review dismissed. Times New Roman Introduction "Arial By a Notice of application for leave to apply for judicial review in the prescribed Form 86 filed on 6 July 2021, the applicant applied for leave to apply for judicial review ( Leave Application ). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non Refoulement Claims Petition Office ( Board ) dated 24 June 2021 ( Board s Decision ) dismissing the applicant's appeal against the decisions of the Director of Immigration ( Director ated September 2020 ( Director s Decision ) rejecting the applicant's non refoulement "Arial Introduction Discussion Title Headings _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8