LU A TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 215/2021 [2025] HKCFI 5054 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 215 of 2021 BETWEEN Lu A Tung 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; ( consideration of documents only; or consideration of documents and Applicant being absent in open court; Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 11 January 2021 of the Torture Claims Appeal Board ( the Board s Decision ), dismissing the appeal against the Director s Decision as described below. The applicant did not ask for a hearing. 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 The applicant is a national of Vietnam. He is an illegal immigrant, having sneaked into Hong Kong illegally on 8 May 2019. He was arrested. 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 a person called Tuan who conducted the business of selling lottery tickets. Tuan had requested him to join him, but he refused. Tuan sent his subordinates to snatch away his tickets. He had had a fight with them. He threw a brick and injured one of them. Details of his claim are set out in the Board s Decision. See hyperlink HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000215_2021_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000215_2021_files/the_Board's_Decision.pdf . The Director s Decision The Director considered the applicant s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, ( Ordinance Torture risk ); 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 ); 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 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 ). By way of Notice of Decision dated 7 November 2019 ( Director Decision ), the Director dismissed the applicant s claim because it was unsubstantiated. The Board s Decision The applicant appealed the Director s Decision to the Board. On 26 May 2020, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board s questions. Having considered the evidence, the Board found the facts below. The assault on the applicant was only minor and the injury was not serious. [65] The Board did not find any consistent pattern of gross and systematic violations of human rights in Vietnam. [85] Internal relocation to places such as Ho Chi Minh City and Da Nang is viable. [124] 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 The applicant has filed Form 86 dated 23 February 2021 for leave to apply for judicial review of the Board s Decision. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board s Decision. DISCUSSION 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). The Court will bear in mind that the Board s Decision should be examined with rigorous examination and anxious scrutiny. 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. The applicant has raised no valid ground to challenge the Board s findings. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board s Decision. DISPOSITION I refuse to grant leave to the applicant to apply for judicial review of the Board s Decision. Accordingly, I dismiss his application. Dated the 4th day of November 2025 (Klein Tse) for Registrar, High Court 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: 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 4/11/2025 Lu A Tung 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 4/11/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 16498/19/11/56/V2382 Director of Immigration Putative Interested Party s ref. no.: VRD 208/1/19 (L) (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT gdq` gdq` gdq` gdq` gdq` gdq` gdq` gdq` ytogc_[cWScOcKcG hme1 gdq` gdq` gdq` gdq` gdq` gdq` gdq` gdq` gdq` gdq` h> p h!e] hHwy gdq` gdq` gdq` gdq` gdq` gdq` xj]SF hPWa hPWa hPWa hPWa hPWa hPWa gdq` gdq` gdq` gdq` }lYF h&t< gdq` gdq` M #v [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> b Bo b Bo GQoU KimWan Lung Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8