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

bjbj HCAL 1379/2021 [2026] HKCFI 1394 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1379 of 2021 BETWEEN Pham Van Cuong 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 10 September 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. 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 because he was unable to repay his loan. 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/HCAL001379_2021_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001379_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 23 March 2021 ( the Director Decision ), the Director dismissed the applicant s claim on all applicable risks because it was unsubstantiated. The Board s Decision The applicant appealed the Director s Decision to the Board. On August 2021, 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 made the findings below. The Board did not accept his evidence that he had a loan from the creditor as he allege. [30] The Board did not accept the applicant as a truthful witness. It did not accept that he was assaulted and threatened as he alleged. [40] In any event, state protection will be available to him if he returns to Vietnam. [49]-[50] Internal relocation is also viable. [70] 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 30 September 2021 for leave to apply for judicial review of the Board s Decision. In support of his application, the applicant did not raise any specific ground 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 11th day of March 2026 (Allen LEE) 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 11/3/2026 Pham Van Cuong 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 11/3/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 17798/21/4/1/V2817 Director of Immigration Putative Interested Party s ref. no.: INVN 401/2020 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT saSaSaSaSF? h5R` gd_:\ rcOB5 gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ gd_:\ yt_:\ gd_:\ yt_:\ gd&Q gd&Q gd&Q yt_:\ wreaaaYRNRIYaEaA gd&Q gd&Q gd&Q gd&Q h6/- gd&Q gd&Q gd&Q gd&Q gd&Q gd&Q q_I_ h%:M gd_:\ gd_:\ gd_:\ ~s~i`MHC gd_:\ gd_:\ gd_:\ zgO8 gd_:\ gd8zf :po] yt_:\ yt_:\ yt_:\ phFx ph`^\ [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml z)P -zh 83;3;{ ]XS1IH 0H!A Ssd- ]A3U mH#[ A\;> K}*7c ^I77 >g^* y')f ZI$G ,{uk< WV j k3 zjv3,j X1? Xjg YIsR3 gm~x theme/theme/_rels/themeManager.xml.rels 5 6?$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"/> ,*"I b Bo <]q2a b Bo .!DS GQoU KimWan Lung Normal.dotm Cheung HoKin Microsoft Office Word "System "System "System Times New Roman Times New Roman HCAL [2026] HKCFI 1394 Times New Roman IN THE HIGH COURT OF HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST 1379 BETWEEN Pham Van Cuong Applicant Torture Claims Appeal Board refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge decision (Ord. 53 r. 3) Following Wingdings 2 consideration of documents only; or consideration of documents and Applicant being absent in open court Order by Deputy High Court Judge K.W. Lung Times New Roman Leave to apply for Judicial Review be refused Observations for the Applicant: Times New Roman THE A PPLICATION "Arial The applicant applies for leave to apply for judicial review of the Decision dated 10 September 2021 of the Torture Claims Appeal Board ( the Board 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, rul e 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. 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