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

bjbj HCAL 1089/2020 [2025] HKCFI 4344 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 of 2020 BETWEEN Vu Van Hien Applicant and 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 7 April 2020 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 request a hearing. I shall deal with his application on the papers. 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 had entered Hong Kong illegally 5 times from 2011 to 2015, each time after having been arrested and repatriated, he returned to Hong Kong again illegally. He lodged a non-refouled claim with the Director of Immigration ( Director ) on the basis that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed 900 million VND for his business and he was unable to repay his debt. The creditor and his people had gone to his home where they assaulted him. In the course of defence, the applicant had broken the hand of one of the people. They demanded compensation of 500 million VND from him. He was unable to make payment. Details of his claim are set out in the Board s Decision. See the hyperlink HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001089_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001089_2020_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, ( the 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 11 April 2019 ( the Director s Decision ), the Director dismissed the applicant s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. The Board s Decision The applicant appealed the Director s Decision to the Board. On 30 December 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered the Board s questions. Having considered the evidence, the Board found that the applicant s claim is a fabrication and no credence whatsoever should be given to his evidence. [83] The Board had, in particular, pointed out that he did not know the material facts of the loan agreement; that he did not know any detail of the business; that he was unable to explain why he had to borrow money from the moneylender; and he had a few Vietnamese passports with him. Application for leave to apply for judicial review of the Board s Decision The applicant has filed Form 86 dated 3 June 2020 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 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 2nd day of October 2025. (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 2/10/2025 Vu Van Hien 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 2/10/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 15828/19/4/86/V2278 Director of Immigration Putative Interested Party s ref. no.: QA T/C 147/19 (Formerly RBCZ 29/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT XJXJXJXJ= h[Z" h[Z" h[Z" h[Z" h[Z" h[Z" yt)m yt)m yt)m yt)m yt)m yt)m yt)m h[Z" h[Z" gd[Z" gd[Z" gd[Z" gd[Z" h[Z" h[Z" gd[Z" gd[Z" gd[Z" gd:| gd:| yt_\ gdNT ytNT bQbQbQ hA|7 h[Z" h[Z" gdNT =*=$ gd:| gd:| ytNT gd:| gd:| yt)m yt)m yt)m yt)m yt)m yt)m yt)m yt_\ ytNT ytNT [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"/> >c B b Bo b Bo V?@k F?@k V?@k Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" SelectedStyle="\APASixthEditionOfficeOnline.xsl" StyleName="APA" Version="6"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{304BFB1C-F9AE-40FC-80E7-E35B2D775326}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8